Tuesday, July 1, 2014

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

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

     Independent counsel was retained to assist the Hearing Panel with this question of law.  The following is the legal opinion the Hearing Panel received.  Ms. Michele Mandel of the Toronto Sun suggested in an article she wrote on April 10th, 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
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.


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.


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

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

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

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