PART THREE - THE MERITS
(Note: The names of witnesses with the exception of H.W. Massiah have been edited to comply with the Hearing Panel's order.)
Should this Honourable Panel determine that it has jurisdiction to hear the complaints as set out in the Notice of Hearing, counsel for Justice Massiah submit the following:
It is submitted that, in all the circumstances, no finding of judicial misconduct should be made in the case at bar.
1. While Justice Massiah acknowledges that he often made complementary comments to court staff, he does not accept that these comments were deliberately “sexualized” or “sexually charged”, or intended to cause anyone to feel undervalued or otherwise slighted. They were intended as primarily aesthetic comments which would complement the recipient and the overall evidence supports a finding that they were welcomed conduct in that workplace at the time they occurred.
With the exception of the Whitby/Oshawa courts, which is the subject of this hearing, Justice Massiah has worked at every court in Central East and at a number of courts in Toronto and no person has testified that Justice Massiah made out-of-court approaches to them, tried to meet them privately, solicited private encounters, or did anything which was calculated to pressure them in any way at these locations.
Since receiving one-on-one gender sensitivity and professional boundaries education and counseling between May 28th and June 6th, 2012 he now recognizes that such comments can constitute sexual harassment and he will conduct himself differently in the future.
2. Counsel for Justice Massiah submit that the other allegations of misconduct made in this hearing were unreliable, dated, and patently not worthy of belief.
3. Counsel submit that there is no evidence that public confidence in the administration of justice has been harmed by Justice Massiah. One would think that, if the converse were true, at least one member of the general public would have complained. The evidence of prosecutors and court staff to that effect is less than persuasive, since they took no action at the relevant time to address any perceived problem.
4. Further, P, one of the prosecutors at the time of the second set of allegations, indeed testified that the in-court misbehaviour was so subtle that it would likely not be noticed by a member of the general public.
Testimony of P July 18, page 134
5. It is submitted that, in ascertaining whether the public’s perception of the independence of the judiciary might be impacted by the allegations in these proceedings, the Honourable Panel ought to bear in mind the fact that the prosecutors who made and organized the second set of allegations stand in a structurally adverse relationship to any sitting judge or justice.
6. In brief, prosecutors ought not to control who sits on the bench deciding cases which they bring before the court. Absent real and convincing proof of misconduct, it is submitted that the public may come to believe that either racism, or conflict of personalities, or disagreement with judicial findings may lead to pretextual concerns which ultimately bring the judiciary into a dependent position vis a vis the prosecution. Should the impression be left that dated allegations of leering at unspecified persons, discernable only by courthouse employees, can cause removal from the bench, it is submitted that a chilling factor could enter into the behaviour of other justices, causing them subconsciously to tailor their decisions to the desires of prosecutors.
7. While this scenario is speculative, it is submitted that it is no more so than the prosecutorial suggestion that His Worship Massiah brought the administration of justice into disrepute while “ogling” attractive defendants. “Ogling” is in the eye of the beholder, it is submitted, and absent a complainant from among the public, it amounts to an unrebuttable allegation. Justice Massiah has testified that he “ogled” no one, and it is submitted that the Panel should not conclude otherwise.
8. Presenting counsel proposes that the Panel find that JP Massiah committed acts of sexual harassment. Sexual harassment is a specific type of discrimination under the various Human Rights instruments, including the Human Rights Code. Discrimination has been discussed by the Supreme Court of Canada in the context of s. 15 of the Charter, as follows:
70 How then should the analysis of s. 15 proceed? In Egan the two‑step approach taken in Andrews v. Law Society of British Columbia,  1 S.C.R. 143, and R. v. Turpin,  1 S.C.R. 1296, was summarized and described in this way (at paras. 130‑31):
The first step is to determine whether, due to a distinction created by the questioned law, a claimant’s right to equality before the law, equality under the law, equal protection of the law or equal benefit of the law has been denied. During this first step, the inquiry should focus upon whether the challenged law has drawn a distinction between the claimant and others, based on personal characteristics.
Not every distinction created by legislation gives rise to discrimination. Therefore, the second step must be to determine whether the distinction created by the law results in discrimination. In order to make this determination, it is necessary to consider first, whether the equality right was denied on the basis of a personal characteristic which is either enumerated in s. 15(1) or which is analogous to those enumerated, and second, whether that distinction has the effect on the claimant of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to benefits or advantages which are available to others.
Vriend v. Alberta,  1 S.C.R. 493
9. Respondent accepts that the comments which are the subject of this hearing did draw a distinction based on gender. The allegations refer to females, and the words spoken and now objected to, ie. “nice hair” “looking good”, etc reflected that fact.
10. He submits, however, that no burden, obligation, or disadvantage was imposed on anyone, nor was there any withholding or limiting access to benefits or advantages available to others as required in a sexual harassment allegation. In effect, there was no “discrimination”, which by definition requires a burden to be placed upon the recipient.
11. Nor was the workplace “poisoned” even if the applicants had been vexed, since they made no effort to inform the employer of any course of conduct they may have objected to, and cannot now be heard to complain that the Massiah behaviour amounted to “a condition of employment” which is required for a finding of “poisoned work environment.”
Vriend v. Alberta,  1 S.C.R. 493
12. As Dixon, C. J. stated in Jantzen in the Supreme Court of Canada:
“The forms of prohibited conduct that, in my view, are discriminatory run the gamut from overt gender based activity, such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment . . . .”
13. The Ontario Human Rights Code reads as follows:
s.7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identify or gender expression by his or her employer or agent of his or her employer, or by another employee.
s.8 Every person has a right to claim and enforce his or her right under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
s.10(1) “harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known is unwelcome.
Was the impugned conduct vexatious?
14. "Vexatious” conduct or comment refers to actions or words that are annoying, distressing or agitating to the person experiencing them; for example, conduct has been found to be vexatious where the person complaining finds the comments or conduct worrisome, discomfiting and demeaning.
Streeter v. HR Technologies, 2009 HRTO 841 at para. 33
The first essential element of the test is to determine whether the conduct was desired or solicited. As stated by Professor A. P. Aggarwal in his book Sexual Harassment in the Workplace, this is essential because "sexual conduct" becomes unlawful only when it is unwelcome.13 Obviously, consensual relationships, by definition, cannot be regarded as harassment. In order to determine if the conduct is welcome or unwelcome, the Tribunal will look to the complainant's reaction at the time the incident occurred and assess whether she expressly, or by her behaviour, demonstrated that the conduct was unwelcome. If the evidence shows that the complainant welcomed the conduct, the complaint will fail.”
CHRC v. Canadian Armed Forces, 1999 CanLII 18902 (FC); 34 CHRR 140; 167 FTR 216 (Emphasis added)
15. While the employer has a duty under the Ontario Human Rights Code to provide a harassment-free workplace, fairness requires that such employer be notified of any problem.
(d) Notification to the Employer
Although this was not an element considered by the Supreme Court in Janzen, I believe that fairness requires the employee, whenever possible, to notify the employer of the alleged offensive conduct.
16. In recent years, courts and tribunals have insisted on a degree of vigilance over the work environment, which requires employers to provide a workplace free from harassment. Conversely, in my opinion, in order for sexual harassment policies to work, the employee should inform the employer of any problems, in order to give him or her the opportunity to remedy them.
17. This requirement will exist where the employer has a personnel department along with a comprehensive and effective sexual harassment policy, including appropriate redress mechanisms, which are already in place.
18. The goal of a sexual harassment policy is to achieve a healthy workplace; and, therefore, the sooner action is taken to eliminate harassing conduct, the less likely it is that any such conduct will become detrimental to the work environment.”
Canada (Human Rights Commission ) v. Canada ( Armed Forces ),  3 FC 653, 1999 CanLII 18902 (FC) (emphasis added)
19. The Court in CHRC v. Canada (Armed Forces) also discussed sexual annoyance as a type of sexual harassment:
“Sexual annoyance, the second type of sexual harassment, is sexually related conduct that is hostile, intimidating, or offensive to the employee, but nonetheless has no direct link to any tangible job benefit or harm. Rather, this annoying conduct creates a bothersome work environment and effectively makes the worker's willingness to endure that environment a term or condition of employment.
20. The second subgroup encompasses all other conduct of a sexual nature that demeans or humiliates the person addressed and in that way also creates an offensive work environment. This includes sexual taunts, lewd or provocative comments and gestures, and sexually offensive physical contact.
21. In summary, sexual harassment can manifest itself both physically and psychologically. In its milder form it may be confined to verbal innuendoes and inappropriate affectional gestures. Sexual harassment can, however, escalate to extreme behaviour amounting to attempted or actual rape.
22. Verbally, sexual harassment may include:
· unwelcome remarks
· jokes that cause awkwardness or embarrassment
· innuendoes or taunting
· gender-based insults or sexist remarks
· displaying of pornographic or other offensive or derogatory pictures
· telephone calls with sexual overtones
23. Physically, the recipient female employee may be the victim of:
· brushing against
24. Psychological harassment can involve:
· a relentless proposal of physical intimacy,
· beginning with subtle hints which may lead to overt requests for dates,
· sexual favours, and
CHRC v. Canada (Armed Forces) supra, (emphasis added)
25. Respondent notes that with the exception of “leering”, none of the behaviour alleged to have been committed by Justice Massiah are included in the list. No court has ever held that a series of pleasantries and complements, accepted without comment, without more, amounts to sexual harassment.
“The Code provides that all persons have a right to be free of discrimination (section 5(1)) and harassment in the workplace (section 7(2)) “because of sex”. There can be no doubt that the reference to “because of sex” captures the concepts of gender, sexuality and sexual categories, as well as sexual characteristics and, therefore, includes sexually-related discrimination and harassment. The focus of a sexual harassment inquiry is not strictly on the gender or sexual orientation of the parties. It is a multi-faceted assessment that looks at the balance of power between the parties, the nature, severity and frequency of impugned conduct, and the impact of the conduct. The key indicia (and harm) of sexual harassment is the use of sex and sexuality to leverage power to control, intimidate or embarrass the victim.” (Emphasis added)
Harriott v. National Money Mart Company 2010 HRTO 254 at page 24 (Canlii)
26. At the time of the events now objected to, no one complained that they were unwelcome; no one informed management that the workplace was being poisoned or that they were being discriminated against. Justice Massiah testified that he felt generally very well received by the staff at the courthouse, and his testimony to this effect was supported by other witnesses such as Supervisor Z, Ms. V etc.
27. The question arises whether Justice Massiah “ought to have known that the comments and behaviour were unwelcome” as the statutory definition requires.
28. As Cronk, J.A. stated for the Ontario Court of Appeal:
 Workplaces become poisoned for the purpose of constructive dismissal only where serious wrongful behaviour is demonstrated. The plaintiff bears the onus of establishing a claim of a poisoned workplace. As the trial judge recognized, the test is an objective one. A plaintiff’s subjective feelings or even genuinely-held beliefs are insufficient to discharge this onus. There must be evidence that, to the objective reasonable bystander, would support the conclusion that a poisoned workplace environment had been created.
 Moreover, except for particularly egregious, stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated: Bobb at paras. 85-87; Canada (Canadian Armed Forces) (re Franke) at paras. 43-46.
General Motors of Canada Limited v. Johnson, 2013 ONCA 502 (CanLII)
29. It is submitted that the evidence clearly shows that the ONLY reason a complaint was made was the testimony of Justice Massiah at the earlier hearing. But for his testimony, no allegation would ever have been forthcoming from any of the witnesses, it is submitted.
INFIRMITIES IN WITNESSES’ TESTIMONY
30. The witness Y testified that Justice Massiah never said anything sexually inappropriate to her, nor did he do anything to her that was vexatious. However, she testified that he “checked out” other female employees, and made inappropriate comments to still others.
31. Her testimony suffers from the following infirmities:
32. She made no complaint until she read Justice Massiah’s testimony at the first hearing, as reported in the newspaper. Even though she claimed she had no knowledge of the nature of those complaints, she decided that Justice Massiah would get a “kiss” from the previous panel, meaning an inappropriately low penalty.
33. Even though she was aware of the protection against discrimination in the Collective Agreement and knew her union representative, she made no effort to use that avenue to protect her rights.
34. She bore an animus against Justice Massiah. She thought he was a bad Justice who “coddled” defendants, especially women, to whom he gave low sentences. However, she was unable to explain anything about the principles of sentencing. “He’s too concerned about the wellbeing of the accused” she thought. She was angered because, early on in his career as a Justice, he called her “Clerk Y”. She thought he was so arrogant that he wanted everyone to love him, and probably treated men the same way he treated women. On one occasion, he overrode something she said to a member of the public in a court proceeding; as a result, she was shouting at him after court. Eventually she apologised.
35. She used to call Justice Massiah “soul brother”, but not to his face. She denied that this is a racialized term, testimony that should place the entirety of her evidence in doubt. She denied speaking to others about the ongoing first hearing, but when confronted with the fact that her statement included knowledge about W ’s letter of support at the first hearing, she testified that it might have come from “water cooler conversations”.
36. Her evidence that Justice Massiah “checked out” women is too vague to be relied upon. She names no individual, nor any specific time when this occurred. While supposedly being concerned about Justice Massiah’s behaviour in the courtroom, she provided no transcript of anything he said which was inappropriate. We are left with her subjective opinion, not supported by any complaint from persons appearing before Justice Massiah, that he said or did anything inappropriate.
37. Her evidence about the incident with F also is not worthy of belief. She admits that whatever Justice Massiah may have been doing with his hands, she could not see from her vantage point. She claims, also, that something was said, but has no recollection as to what. Taking her evidence along with that of F, the Panel should entertain substantial doubt that a purposeful touching incident ever occurred. The Respondent notes that Ms. Y, who disliked Justice Massiah, was far more interested in “pushing” the incident that the supposed victim ever was.
38. Particularly in view of the fact that Ms. V had told other employees that the incident involved Justice Massiah touching her hair, something which easily could have occurred accidentally in a tight space, no reliance can be placed upon Ms. Y’s belief to the contrary, it is submitted.
Evidence of B:
39. The second witness was B. We submit that her evidence was totally unbelievable and should be rejected in its entirety.
40. B was of the view that Justice Massiah was a “Barberion”, ie. originally from Barbados. She testified at length that he favoured, not women, but “his own kind”. She testified that after convicting people, he would ask where they were from, and if the answer was Barbados, he would treat them more lightly. This evidence put her powers of observation utterly into question. Justice Massiah is not from Barbados. He would have no reason to favour people from Barbados. No transcripts supporting this supposed bias were presented.
41. Further, B’s testimony was shaken in cross examination on other grounds. She had provided a statement to previous counsel, at the previous hearing, to the effect that Justice Massiah was a friendly justice whose compliments to her were welcome, and who had done nothing inappropriate. She disavowed the email she sent previous counsel, Mr Bhattachiriya, on the basis that each and every positive statement made about Justice Massiah was made by her only to get counsel to stop badgering her.
42. This testimony is unreliable. It should be noted that she told the investigators that, at the time, she had been naive in thinking that his comments to her such as “Hey girl, looking good” and similar, were simply a reflection of the fact that people from the Caribbean islands talk that way and have a more relaxed culture.
43. She told the investigators that “the outcome” of the previous hearing made her now recognize that what she had previously thought to be friendly and culture- based differences, was in fact gender-based discrimination. . Her answers to the investigators about her change in attitude and the reasons therefore were put to her in cross-examination; her reply did In fact, the timing of her emails to counsel suggest strongly that she changed her evidence at the same time as the prosecutors’ group were organizing further complaints against Justice Massiah, and her colleague Y was looking for other complaints to bring forward. Exhibit 25 indicates that she wrote the lawyer directly that she could not be a character witness due to pressure in the office.
44. It is submitted that her ability to characterize Massiah’s behaviour first as positive, then as entirely negative, is explained by pressure in the office, and not by Mr. Bhattachuria’s attempt to get her to be a witness. If her concern was to end the conversation with Mr. Bhattachuria, as she testified, a simple statement that she did not wish to be a character witness would have sufficed, it is submitted.
45. It is submitted that her evidence is not worthy of belief; if anything, the emails which form Exhibit 25 constitute a more contemporaneous record of her relationship with Justice Massiah than does her testimony before the panel.
Impact of Delay:
46. B was very clear that the passage of time adversely impacted her recollection on some material particulars.(July 16th at p.23) She could not tell us when in time the dressing issue took place. (July 16th at p.181-82) At p.238 she could not recall whether in fact she ever told Mr. Bhattacharya that she could not be a character witness for him because of the dressing incident. She later suggests that he did not ask her about that because she would have told him about it. (at p.240) Again she admits that the passage of time has affected her ability to recall some of the material points.(at p.240 ln 23)
47. Cogent evidence that Ms. B is not an objective and disinterested witness can be seen at p 22 of the July 16th, 2014 transcript of her testimony. When confronted with her investigation interview where she stated that HW Massiah would chat about, amongst other things, “how court looked, like the docket” she states that “I don’t recall.” Although she acknowledges that she was trying to be very honest in her answers then she nonetheless defiantly refuses to acknowledge that her memory would have been better at the time she gave the statement than at this time.
Exhibit 25 - emails between Mr. Bhattacharya and Ms. B
Testimony of B - July 15th and 16th, 2014
Evidence of X
48. Ms. X testified that Justice Massiah directed a sexualized comment against her in the spring or early summer of 2010. He was seated on a concrete seat outside the courthouse, and said to her, “Looking good, Ms. X!” She disliked his tone, which according to her was sexualized.
49. Justice Massiah denies making the comment as alleged. He notes that at the time it was supposedly made, Ms. X was the subject of a complaint by another Justice of the Peace, and that he, Massiah, was a potential witness. Justice Massiah stated that it is unthinkable that he would be directing such a comment to someone who he might soon be testifying against. It is far more likely that he would keep a generous distance, as he said he did.
50. Ms. X told the Panel that she had no idea that Massiah might be a witness against her. It is submitted that such is very likely to be untrue, since full knowledge of the allegations against one is part of the mandated procedure in Law Society proceedings. In any event, it would be obvious to a seasoned prosecutor receiving such a complaint that Massiah would be a likely witness.
51. Even if she had no idea that Justice Massiah would be put in an adversarial position towards her, Justice Massiah certainly knew. And it is submitted that no one in such a position would be speaking to a potential defendant in a sexualized, semi-romantic way, as she alleged.
52. It is submitted that Ms. X may be inventing this incident, or exaggerating its actual content. It is likely that having been exonerated in the Law Society disciplinary matter, she simply forgot that it was ongoing at the moment when she chose to create or exaggerate an interaction.
Evidence of M
53. He testified that throughout the first hearing, the prosecutors office that he led was continually informed and updated about the progress of that hearing. They followed the case with great interest. They got information informally, from some of the court clerks and admin people. As well, he knew some of the complainants at the first hearing and could not exclude the suggestion that they had informed him of the proceedings. He said that these interactions might have occurred at Tim Hortons, or social functions, retirement parties, and the like.
M - Testimony, July 18th, 2014
page 50 line 11 to p. 56 line 12
54. One of his motivations, according to him was his need to “support the clerks.” While he claimed that this was the group of clerks in his office who had not made any allegations, it is submitted that it is more likely that he was referring to the clerks who he knew who were complainants in the first hearing which he was being informed about informally and who Justice Massiah had allegedly maligned in his testimony at that hearing.
M - Testimony, page 55 line 20 to p. 57 line 8
55. He also thought Massiah would get a “slap on the wrist” and was concerned about that. Concern that a Hearing Panel will give a light sentence is not an appropriate reason to come forward, it is submitted.
As above a p. 61, lines 1-11
56. M claimed that Justice of the Peace Massiah looked at defendants in an inappropriately sexual way. However, although he testified that this leering brought the administration of justice into disrepute, he had done nothing to document it, even to the extent of taking a written note, over a several-year period when this behaviour was allegedly common.
57. As he testified in reply: “I did nothing for so long, I’ll admit that” But as conversations were maybe gaining momentum, I felt more---I felt compelled to take a step.
As above at p. 101, lines 10-13
Evidence of F
58. F testified that Justice Massiah once came to her desk and “from what I can remember” “just put his arms on my shoulders and made a remark”. It made her feel very uncomfortable. If true, this would be evidence of judicial misconduct, but it is submitted, it cannot be believed.
Evidence of F, July 16th, page 49, lines 6-16
59. Mr. Gourlay for Presenting Counsel asked her why she had never made this allegation before giving her testimony. We submit that he was right to do so. Ms. F however, stated that she had said this previously, and pointed to a leading question by investigators: “Do you recall him coming up behind you, putting his hands on your shoulder, and saying something to you and then walking away” Answer: “Yup, yup. yup, that may have happened.”
60. She continued: “I remember it definitely was not appropriate what he said or what he did, I remember because of the reactions. I remember because of how I felt. I don’t remember specifics.”
Evidence of F, July 16th, page 76
Adverse impact of delay:
61. It is submitted that a statement such as this in response to a leading question would, if it stood alone, be entitled to very little weight, if any. However, as became clear in cross examination, that response was in the context of numerous statements that she did not remember anything about the incident.
62. For example, she testified in cross that she had earlier told the investigators that there was an incident which made her feel uncomfortable, but that she didn’t remember specifics. In answer to the question: “What made you uncomfortable about it?” she had replied “it was a comment, I think, that was made.”
63. Earlier, she had told investigators, in response to the question: “And what did happen? What was inappropriate? she answered “I don’t remember exactly what it was that happened, I can’t remember if it was a remark, ...I remember it being inappropriate...and I remember speaking to another co-worker about it, because I believe she overheard And years down the road, that’s when she asked me to come forward. And with what was going on in Oshawa I said I really didn’t remember the incident that much.”
Question: Did you say that? Answer: Yes. Question: Is that true? Answer: Yes.
Evidence of F, July 16th, pages 94-95
64. She testified that though she “did not remember much about the incident” she “felt pressure to testify about the incident” and was being “pushed to do something she didn’t want to do” by Y, who was relating the incident to the ongoing hearings in Oshawa (the first Panel.) She complained to her supervisor and the matter was dropped for the time being. At that point, she told Y “Good luck to the girls over there.”
Evidence of F, July 16th, p. 97-102
Evidence of P
65. P had been a member of the prosecutors’ office which generated the second set of allegations against Massiah. She denied reaching out to Y, or asking her to find complainants, contrary to Ms. Y’s repeated statements to the contrary.
66. She claims that JP Massiah, while never saying anything to her directly, or doing anything improper to her, nonetheless ogled women in the courtroom. However, this ogling was so subtle that only courtroom insiders would notice it, she said.
67. Her evidence is obviously a calculated attempt to make her allegations irrebuttable; however she never complained about any of them at the time, or made any attempt to document anything. In the final analysis, we are faced with the subjective impression of a prosecutor, without corroboration.
68. The absence of any member of the public as a witness in this proceeding loudly proclaims that the public was not impacted.
69. She also said she overheard Justice Massiah saying to her friend Ms. X “Lady in Red” in a playful manner. Ms. X was wearing a red business suit at the time. Since Ms. X does not remember the comment at all, it should not weigh heavily on the Panel, it is submitted. For reasons unknown, she denied that JP Massiah had been singing a bar from a song, even though she had told investigators that he had said it “in a sing-song voice.”
70. Justice Massiah did not remember the incident, which is said to have occurred approximately six years ago. He admitted that he did know a song titled “Lady in Red”but did not believe he had done anything improper towards Ms. X.
Semi-Dressed Incidents in Chambers
71. Three witnesses testified that they observed Justice Massiah in his chambers, not fully dressed.
72. The evidence of Ms. B, if taken at face value, would represent the most egregious of the events. She testified that she knocked, went in to his chambers on several occasions, and Justice Massiah had not completed dressing in these instances. She claims to have been shocked.
73. In view of Ms. B’s overall lack of credibility--it is submitted that she lied to the Panel throughout her evidence--no credence can be placed on these allegations either. A person shocked by a Justice of the Peace in a semi-naked state would have reported the incident to management, it is submitted, and would certainly not have written the emails she did. It is more likely that her allegations in this respect were a late scheme to show support for others in the office, it is submitted, especially in view of “the outcome” of the first hearing.
74. Justice Massiah stated that her evidence could well be true, although he does not remember the incident. The door to the Chambers was left open, and if someone came in without knocking, they might find him dressing. He denied any intention to discomfort Ms. A.
75. She testified that she walked into a darkened JP office because she assumed no one was in, since the lights were off. She did not knock. Justice Massiah was in the process of getting dressed. He had a t-shirt on and was dressing in his court shirt. He appeared to be surprised but did not look uncomfortable.
76. She testified that Justice Massiah was considered an attractive man, but denied that she had told her supervisor that the girls in the office like to try to see JP Massiah with his shirt off. It is submitted that Supervisor Z would not invent such a statement, and it should be relied upon for context with respect to Ms. Jones’ testimony. The Panel should conclude that Justice Massiah did nothing untoward in this incident.
Standard of Proof, Credibility and Reliability:
77. IT IS RESPECTFULLY SUBMITTED THAT the proper adjudication of this case is governed by the Supreme Court of Canada’s decision in F.H. McDougall, 2008 SCC 53 which confirmed that the “balance of probabilities standard of proof applies to all civil cases, and, in order to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent.”
78. “Credibility” and “reliability” of evidence are distinct concepts which play a fundamental role in the proper adjudication of this case since HW Massiah testified in this case, provided a written response following the investigation and the testimony of the witnesses and their evidence is at odds on some points.
79. Credibility relates to the witness’s honesty and sincerity, while reliability encompasses the accuracy and fallibility of the evidence.
80. The traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorney  2 D.L.R. 354 is applicable here:
“Opportunities for knowledge, powers of observation, Bjudgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions...Again, a witness may testify to what he sincerely believes to be true, but he may quite honestly mistaken.”
Lavoie v. Calaboie Peaks et al 2012 HRTO 1237
81. The following factors assist in the assessment of reliability and credibility and the application of the “preponderance of the probabilities’ test:
- the internal consistency or inconsistency of evidence
- the witness’s ability and/or capacity to apprehend and recollect
- the witness’s opportunity and/or inclination to tailor evidence
- the witness’s opportunity and/or inclination to embellish evidence
- the existence of corroborative and/or confirmatory evidence
- the motives of the witnesses and/or their relationship with the parties
- the failure to call or produce material evidence
82. It is submitted that the Panel should find that Justice Massiah did not commit professional misconduct on the evidence before the Panel. The calculated decision not to assert their rights in a timely manner while keenly observing the prior proceedings and openly admitting that part of the motivation to come forward as they did was because they figured HW Massiah would merely get a “slap on the wrist” puts a stain on their evidence which makes it lacking in credibility, reliability and not to rise to the clear, convincing and cogent standard required for a finding of judicial misconduct.
83. HW Massiah respectfully requests that the Hearing Panel recommend that he be compensated for all of the cost of legal services he has incurred in connection with these proceedings. A Bill of Costs will be prepared and submitted in due course.
All of which is respectfully submitted.
Ernest J. Guiste and Jeffry House, co-counsel for the Applicant, HW Massiah
NOTE: This post is published here to draw attention to an issue of public importance, namely, the prosecution of a judicial officer for judicial misconduct with respect to conduct alleged to be contrary to the public policy articulated under the Human Rights Code of Ontario. See Notice of Hearing dated May 31st, 2013 at paragraph 1. "Between May 30, 2007 and August 23, 2010 you engaged in a course of conduct, including comments and/or conduct, towards female court staff, prosecutors and defendants that was known or ought to have reasonably be known to be unwelcome or unwanted. The conduct resulted in a poisoned work environment that was not free of harassment. - 5. The behaviour occurred in the workplace at the Courthouse or at a location or event related to the workplace. - 14 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."