Last July I became involved in defending His Worship Massiah on a complaint of judicial misconduct which is currently before a Hearing Panel of the Justices of the Peace Review Council(JPRC). My first order of business was to bring a motion challenging the panel's jurisdiction to entertain on grounds of jurisdiction and abuse of process. Notwithstanding the fact that the JPRC's own procedures provide for the bringing of such motions the panel raised a preliminary question of law asking whether they had the jurisdiction to entertain the motion I brought.
Independent counsel was retained to assist the Hearing Panel with this question of law. The following is the legal opinion the Hearing Panel received. Ms. Michele Mandel of the Toronto Sun suggested in an article she wrote on April 10th, 2014 that I was bringing frivolous motions to delay the proceedings. I think that even she will agree that the hearing could not get started until such time as the Hearing Panel's own question of law was resolved. I suspect that Ms. Mandel was not aware of this salient fact when she wrote her story. The legal opinion suggests that the motion I brought was within the jurisdiction of the Hearing Panel to entertain.
May 23, 2014
Sent via E-mail
Ms.Marilyn
King
Registrar
Justice
of the Peace Review Council
P.O. Box
p14,
Adelaide
Street Postal Station,
31
Adelaide Street East,
Toronto,
Ontario
M5C 2K3
Dear Ms. King:
Re: Hearing Regarding Justice of the Peace Errol Massiah
Please convey this
letter to the Panel hearing the above-noted matter (the "Hearing
Panel").
As you know, the
Hearing Panel has asked us for independent legal advice (in accordance with s.
8As (15) of the Justices of the Peace Act) concerning two issues, which arise in
the context of a motion brought by Mr.Gusite on behalf of the Justice of the
Peace Massiah, and on which the parties have filled written submissions. The
question in relation to which the Hearing Panel seeks independent advice on are
as follows:
1.
What is the extent of
the jurisdiction (if any) of this Hearing Panel of the Justice the Peace Review
Council to review and/or grant relief concerning decisions or actions taken by
the Complaints Committee?
2.
What is the extent of
the jurisdiction (if any) of the Hearing Panel to consider whether there is a
valid complaint under s. 10.2 of the Justices of the Peace Act[1] (“JPA” or “Act”), or is the
Hearing Panel mandated only to proceed with a hearing once it has been ordered
by the Complaints Committee under s. 11(15)(d) of the JPA?
Our advice and opinion
may be summarized as follows:
1.
The Hearing Panel does
not have jurisdiction to "sit in review" of, vary or overturn,
decisions of the Complaints Committee, nor to give the Complaints Committee
direction or refuse to comply with the Complaints Committee's decision to order
a hearing under s. 11(15)(d) of the JPA. However, the Hearing Panel does have
jurisdiction to determine questions of law and to grant relief within, and
affecting, the current hearing. Such determinations may (and in this instance
appear to) require the Panel to consider the steps taken by the Complaints
Committee and draw legal conclusions from them, and empower the Panel to grant
relief accordingly, including a remedy for abuse of process and Charter
remedies under s. 24(1) of the Canadian Charter of Rights and Freedoms.
2.
Yes, the Hearing Panel
may consider and determine the question of whether a valid “complaint” exist
under s. 10.2 of the JPA as part of
its jurisdiction to determine any question of fact or la arsing in the
proceedings before it.
In short, the question of whether the Hearing Panel has
jurisdiction really turns on the purpose for which it is considering the
Complains Committee’s processes. The Hearing Panel cannot take action, which
would effectively appropriate powers exclusively within the Complaints
Committee’s jurisdiction, but it may be make orders and determinations within the present hearing which require it to
consider the Complaints Committee’s processes and how they operated in the
present case.
In view of the submissions made by Presenting Counsel (and
replied to by Mr. Guiste), we also consider several of the specific grounds
asserted in the Amended notice of Application dated February 23, 2014, from the
perspective of the Hearing Panel’s jurisdiction.
What follows is an explanation of our opinion and the
analysis underlying it, in addition to these specific comments which are set
out at the conclusion.
Analysis
The jurisdiction of the Hearing Panel to “review and/or
grant relief concerning decisions or actions taken by the Complains Committee”
requires careful consideration of the separate functions of each of the two
bodies as established under the JPA.
The Complaints Committee, as established in s. 11, performs an investigative
function which can (as it has in this case) lead to an order that a formal
hearing be held into a complaint made under s. 10.2. Its members are
prohibited, by s. 11(4), from then participating in such a hearing. Its
investigates are held in private (s. 11(8)). Its core power is to determine, at
the conclusion of the investigation, whether to dismiss a complain, invite the
justice of the peace to attend to receive
advice, order a formal hearing by a Hearing Panel, or refer the complaint to
the Chief Justice, arises under s. 11(15).
The Hearing Panel, by a contrast, is established only a
consequence of a Complaints Committee’s decision that a hearing is necessary
under s. 11(15)(c). The resulting hearing is an oral, adjudicative hearing
governed by the Statutory Powers
Procedure Act[2] (“SPPA”)[3], at the conclusion of which the Hearing Panel is entitles to reach
the dispositions listed in s. 11.1(10) of the Act. Unsurprisingly, the Panel has no express authority to
override, review, or reconsider any of the determinations made by the
Complaints Committee nor to exercise any of its powers.
In our view, the structure of the JPA makes it clear that the Hearing Panel cannot “review” a
decision or action of the Complaints Committee in the sense of altering or
varying that decision. To do so would be to puport to exercise powers
granted to the Complaints Committee in s. 11 of the Act, which are clearly separate from the powers granted to the
Hearing Panel under s. 11. However, it may in a sense “grant relief concerning”
such decisions or actions where those
decisions or actions are significant to the exercise of a power of the
Panel concerning its won mandate.
In other words, the Panel may not purport to vary, overturn
or otherwise modify a decision or action already taken by a Complaints
Committee. But it can make orders its own proceedings that include an analysis
of a Complaints Committee’s actions or decision, including potentially reaching
the conclusion that a Complaints Committee made a decision, or took an action
in error. The Hearing Panel’s powers in that regard include the power to
consider and decide the specific item you have raised under Question 2: the
validity of a “complaint” made under s. 10.2 of the JPA.
We find support for our views from several sources, but the
two of greatest significance are: (a) the statutory author and the jurisprudence
governing administrative tribunal remedies for abuses of process; and (b) the
jurisprudence surrounding tribunal jurisdiction to determine questions of law.
Abuse
of Process
Section 23 of the S.P.P.A.
explicitly grants the Hearing Panel the power to make orders to control
abuses of its process. The term “abuse of process” is a wide one with more than
one discrete meaning. It can include attempts to improperly re-litigate
already-decided issues (e.g., Toronto (City) v. C.U.P.E. Local 79,
2003 SCC 63) but also encompasses a wide variety of “fairness” issues arising
in the course of administrative processes. The Supreme Court confirmed the availability
of administrative law remedies for abuse of process most definitely focused on
the issue of when an inordinate or undue relay in the proceedings becomes
unacceptable to the point of becoming an “abuse of process”, emphasizing that
such delays must involve significant prejudice to the ability of the individual
to receive a fair hearing.[4]
The broadest category of abuse of process (and that which appears
to be implicated by the motion before the Hearing Panel) is that caught by the
general principle and cannot be limited to specific sets of facts: an abuse of process exists where “the
damage of the public interest in the fairness of the administrative process
should the proceeding go ahead would exceed the harm to the public interest in
the enforcement of the legislation if the proceedings were halted” (Blencoe, para. 120, citing Brown &
Evans, Judicial Review of Administrative
Action, p. 9-68). Put another way, an abuse of process requires the
tribunal to conclude that the proceedings have become “unfair to the point that they are contrary to the intersects
of justice”, a situation described as being “extremely rare” (Blencoe, para. 120 , citing R. v. Power, [1994] 1 S.C.R. 601). Given that it is fundamentally a “flexible doctrine”
(C.U.U.P.E. at para. 37), it is impossible
to define with precision what circumstances or conduct within the course of
administrative proceedings can be relevant to finding an abuse of process.
The Hearing Panel has explicitly asked us not to express
any view on the substance of the motions, which we understand are still being
argued, and none of these comments should be taken as an assessment of the substance
or the merits of the arguments made or the relevant evidence underlying those
arguments. It is open to the Hearing Panel to find that these arguments are
well – or poorly-founded, and to conclude that they are legally relevant or
irrelevant to the current proceeding. We simply conclude that the nature and
character of the issues raised[5] are such that the Hearing
Panel has jurisdiction to hear and consider these issues, and evidence and
argument to support them, in so far as they relate to the conduct of the
Complaints Committee, under its broad authority to consider whether these proceedings against Justice of the
Peace Massiah meet the definition of an “abuse of process”.
Administrative
Law Remedies
Another important thread of jurisprudence to consider –
particularly with respect to the Panel’s second question concerning its
authority to determine the validity of a “complaint” under s. 10.2 of the JPA
– emerges from a series of Supreme Court of Canada cases leading with jurisdiction,
these decisions shed some light on the more general power of a tribunal to decide
“questions of law” arising in proceedings before them. In Martin v. Nova Scotia (Workers Compensation Board), 2003 SCC 54,
the Court explained how this power could be located either in explicit
statutory language, or implicitly provided for in the governing legislation. As
there is no express provision granting the Panel the power to decide all
questions of law arising in proceedings before, it, the Court’s guidance on
implicit conferral of such power is of greatest significance:
Absent an explicit grant, it becomes
necessary to consider whether the legislator intended to confer upon the
tribunal implied jurisdiction to decide questions of law arising under the challenged
provision. Implied jurisdiction must be discerned by looking at
the statue as a whole. Relevant factors will include the statutory mandate
of the tribunal in issue and whether deciding questions of law is necessary to
fulfilling this mandate effectively ; the interaction of the tribunal in
question with other elements of the administrative system; whether
the tribunal is adjudicative in nature; and practical considerations, including
the tribunal’s capacity to consider questions of law. Practical considerations,
however, cannot override a clear implication from the statue itself,
particularly when depriving the tribunal of the power to decide questions of
law would impair its capacity to fulfill its intended mandate. As is the case for
explicit jurisdiction, if the tribunal is found to have implied jurisdiction to
decide questions of law arising under a legislative provision, this power will
be presumed to include jurisdiction to determine the constitutional validity of
that provision.
Martin, supra para. 41
Here there
is no direct challenge to the constitutional validity of any provision of the JPA. Nonetheless, the Court’s
explanation of the power to determine questions of law (including statutory
interpretation) is significant to considering the Hearing Panel’s jurisdiction
here. In our view, the Hearing Panel clearly has the power to determine
questions of law provided they arise in the course of the hearing before them,
for several of the reasons mention in Martin:
·
The mandate of the
tribunal cannot be effectively fulfilled without the power to determine
questions of law. The broad subject matter of judicial misconduct implies the probability
that questions of law will be raised in the course of considering whether a
complaint against a Justice of the Peace ought to be upheld in any given case.
·
This conclusion is bolstered
by provisions in the JPA which clearly
contemplate the likelihood that the Hearing Panel will make legal determinations,,
including the authorization to retain “counsel” to assist it in s. 8(15), and
the power to determine the parties to the heating under s. 11.1(8).
·
The Rules of Procedure referred to in s.
11.1(5) specifically contemplate (e.g., at s 18(3)) the determination of
questions of law arsing in motions.
·
The Hearing Panel is
fundamentally adjudicative in nature, as reflected by the application of the S.P.P.A.
·
As it is composed of a
judge, a justice of the peace, and a third person who may (though she need not)
be a judge or a lawyer, the Hearing Panel is clearly has the institutional
competence to determine questions of law.
It also
appears clear to us that there is jurisdiction in the Hearing Panel to consider
questions of law specifically arising under s. 10.2 of the JPA not only because of these general factors, but because the hearing
Panel’s own governing provision (s. 11.1) repeatedly refers to the subject
matter of the hearing as being the “complaint”. This is seen, for example, at
ss. 11 11.1(9), (10) and (19). Particularly with respect to s. 11.1(10), the triggering
event for the hearing Panel’s jurisdiction to impose specific dispositions is
the Hearing Panels view as to whether to uphold the “complaint”. It is
therefore necessarily the case that the Hearing Panel must have the power to
consider both the content of, and the legislative requirements applicable to, a
“complaint” within the meaning of the JPA,
since ultimately it is a “complaint” which the Hearing Panel is adjudicating.
We therefore
conclude, based on this jurisprudence as well, that the Hearing Panel has
jurisdiction to consider the specific issue of the sufficiency of the “complaint”
within the meaning of s. 10.2 both in assessing whether it has jurisdiction to
convene the hearing, or as part of a broader consideration of whether an “abuse
of process” has occurred.
Prematurity Jurisprudence under the
Regulated Health Professional Act
We would
also not the weight of authority of the Divisional Court cases which considered
analogous arguments concerning alleged improprieties in the complaints process
of the various health colleges established under the Regulated Health Professional Act (“RHPA”), which are referred to in Presenting Counsel’s written
submissions as to jurisdiction at paragraphs 10-19. While the RHPA is a different statutory regime,
there are similarities in that a similar “complaints committee”[6] exits to oversee an
investigation, and a “discipline committee” exists to conduct SPPA -governed oral discipline hearings.
We would
agree that the weight of authority is that allegation of impropriety in the
complaints process, which might create an abuse of process or similar basis for
granting relief, ought to be raised at the hearing stage, in this case before
this Hearing Panel, and that any attempt to take such issues directly to the
Divisional Court after the Complaints Committee referral to hearing would
likely to be regarded as premature and therefore quashed by the Court in the
absence of extraordinary circumstances. The reason employed by the Court in the
cases referred to by Present Counsel is that such issues ought to be litigated
at the administrative level. The implication of these decision for purposes of
the Hearing Panel’s questions is simple to confirm the analysis above: the hearing
Panel must have jurisdiction to entertain these issues, since it would be
premature to advance them before the Divisional Court until the Hearing Panel has
dealt with them, as well as with the hearing on the merits.
Specific Comments on the Grounds Asserted in
the Amended Notice of Application
The Amended
Notice of Application dated February 23, 2014, asserts eleven grounds for the
present motion. Our views flow from the above propositions with respect to the
Hearing Panel’s jurisdiction, but it is helpful to comment at least briefly on
these specific grounds and we do so in light of Presenting Counsel’s
submissions that at least Grounds #4 and #5 are outside the Hearing Panel’s
jurisdiction. We note again that these comments should not be taken to express
a view as to whether the issues are meritorious or whether, assuming the
grounds were all made out, they would or could amount to an abuse of process,
but are prepared to assist the Hearing Panel with advice or analysis on that
issue should it later deem that assistance appropriate.
Paragraphs
1 through 2b, 3a and 6 have to do with the legality and appropriateness of the
investigation undertaken by the Complaints Committee. These issues, whether or
not they have substantive merit or evidentiary support, in our view fall within
the hearing Panel’s jurisdiction to determine
whether an abuse of process has occurred, and/or whether this Hearing Panel has
before it a lawful “compliant” to uphold or dismiss.
Paragraph 3
raises a discreet issue with respect to whether there is any legal consequence to
the fact that the complaints before the hearing Panel pre-date a prior
proceeding. The Hearing Panel clearly has jurisdiction t o make this determination,
whether under its jurisdiction to consider whether an abuse of process has occurred
and in considering the legal sufficiency of the “compliant”.
Paragraph 4
attacks both the “tone and manner” of t e investigation, and the allegation
that the investigation was initiated by the Council’s Registrar for an improper
or unlawful purpose. Presenting Counsel submit, at paragraph 7 of their Factum,
that this issue is res judicata, moot
and not included in the allegations in the Notice of Hearing because this complaint
was never referred for hearing. While we believe this impossible view to take,
we believe that the more reasonable view of the Hearing Panel’s jurisdiction is
that it does have jurisdiction to consider the issues raised by paragraph
4 under its “abuses of process” jurisdiction, and the arguments made by
Presenting Counsel are really arguments to be made on the merits. That is,
Presenting Counsel’s arguments go to (A) the factual merits of paragraph 4, and
(b) the legal impact of these facts, and not to the hearing Panel’s
jurisdiction to consider the issue.
Paragraph 5
asserts that the applicant was removed from its judicial duties improperly.
Presenting Counsel submit at paragraph 8 of their Factum that this lies outside
the Hearing Panel’s jurisdiction because this was a decision made by the
Regional Senior Judge that lies outside the realm of the Review Council’s
powers and processes. In our Vies, the More reasonable view (from our understanding
of any abuse of process argument and it viability or legal force, that they are
towards the Hearing Panel’s jurisdiction to entertain the issues as part
of its consideration of the motion.
Conclusion
We hope the
above analysis has been helpful and suitably responsive to the Haring Panel’s
request. We would be pleased to provide further advice at the Hearing Panel’s
request on any aspect of this matter.
Yours
truly,
For: Brian
Gover
BG/sjb
NOTE: This piece is written for the sole purpose of bringing to the public's attention an issue of public importance. The current proceedings involving His Worship Massiah are an issue of public importance because it involves questions touching on fairness, natural justice and most importantly the constitutional doctrine of judicial independence and the Rule of Law. A free and democratic society works best when the people are aware of all of the facts.
NOTE: This piece is written for the sole purpose of bringing to the public's attention an issue of public importance. The current proceedings involving His Worship Massiah are an issue of public importance because it involves questions touching on fairness, natural justice and most importantly the constitutional doctrine of judicial independence and the Rule of Law. A free and democratic society works best when the people are aware of all of the facts.
[4] For
example, because witnesses have become unavailable, memories have faded, key
documents are no longer accessible, or significant psychological harm or stigma
has attached to the individual such that the administrative process would be brought
into disrepute.
