E.J.Guiste on Law and Justice: J.P. Massiah's Factum: Applicant's Motion for Directions and Related Decisions

The factum - written legal argument - posted below was served and filed with the Hearing Panel deciding His Worship Massiah's case on or about November 17th, 2014. It raised the following five legal points regarding fairness and the legitimacy of the legal proceedings:

1. The Notice of Hearing proclaims that the Review Council ordered a hearing when only the
Complaints Committee can order a hearing under s.11(15(c) of the Justices of the Peace Act;

2. Section 11(18) of the Act requires the Complaints Committee to report to the Review Council on its decision;

3. No Report of the Complaints Committee has been disclosed to His Worship Massiah to date;

4. The Notice of Hearing in this case asserts claims for acts or conduct in the workplace for which the subject employees have both collective agreement 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.

The Hearing Panel received the written submissions made on behalf of His Worship Massiah and Presenting Counsel and dismissed the motion by way of a decision dated November 19th, 2014. A copy of this decision is posted below as well. There is a related decision dated November 18th, 2014 posted as well.

File No. 05-22-041/1PD2

JUSTICES OF THE PEACE REVIEW COUNCIL

IN THE MATTER OF COMPLAINT(S)

REGARDING HIS WORSHIP ERROL MASSIAH

Justice of the Peace in the

Central East Region

APPLICANT’S FACTUM

ON APPLICANT’S MOTION FOR DIRECTIONS

EJ GUISTE

Professional Corporation

Trial & Appellate Advocacy

245 Yorkland Blvd., Suite 302

Toronto, Ontario

M2J 4W9

Ernest J. Guiste

(416) 364-8908

(416) 364-0973 fax

JEFFRY HOUSE

Barrister & Solicitor

31 Prince Arthur Avenue

Toronto, Ontario

M5R 1B2

(416) 707-6271

(416) 960-5456 fax

1. The Hearing Panel has heard evidence and has reserved its decision on all matters before it.

2. Subsequent to the parties making submissions to the Hearing Panel a number of issues were discovered in the record and leave was sought by HW Massiah for the Hearing Panel to hear the issues raised and provide directions on how best to deal with them. In addition to the issues discovered last week, the following issues have since been discovered and could potentially impact the fairness and legitimacy of these legal proceedings:

1. The hearing in this matter was ordered by the

Review Counsel and the Justices of the Peace

Act (The Act) does not vest them 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 of the complaints committee has been

disclosed to His Worship Massiah to date;

5. The Notice of Hearing in this case asserts claims

for acts or conduct in the workplace for which the

subject employees have both collective agreement

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

Nature of the Motion:

3. The Procedures of the Justices of the Peace Review Council are silent on the

procedure to be followed in the circumstance which have arisen here and necessitate the bringing of this motion for direction from the Hearing Panel.

4. The Hearing Panel has not rendered a final decision on the matters before it and is not functus officio.

Jacobs Catalystic Ltd. v. IBEW, Local 353

2009 ONCA 749 (Ont. C.A.); Acri v. Canada

2003 FCA 359 (Fed. C.A.)

THE LAW:

5. 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;

s.11(18) 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.

s.11.1(1) 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.

s.8(1) The council known in English as the Justices of

the Peace Review Council and in French as

Conseil d’evaluation des juges de paix is

Continued, c. 21, Schjed. B, s.7.

s.8(2) 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.

s.8(15) 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 that the Notice of Hearing indicates a statutory authority for
the hearing which is not supported by the Act.

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 contains a serious flaw going to
jurisdiction which requires a remedy. His Worship Massiah would like to be
heard on this point.

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.

Remedy:

14. The Applicant seeks leave to have the Hearing Panel entertain and hear the issues raised above in a manner that it sees as fair and just in all of the circumstances.

November 17^th, 2014

All of which is respectfully submitted.

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

IN THE MATTER OF A HEARING UNDER SECTION 11.1 OF THE JUSTICES OF THE PEACE ACT, R.S.O. 1990, c. J.4,

as amended

Concerning a Complaint about the Conduct of

Justice of the Peace Errol Massiah

Before: The Honourable Justice Deborah K. Livingstone, Chair

Justice of the Peace Michael Cuthbertson

Ms. Leonore Foster, Community Member

Hearing Panel of the Justices of the Peace Review Council

DECISION ON HIS WORSHIP’S MOTION FOR LEAVE TO HAVE THE HEARING PANEL ENTERTAIN FURTHER SUBMISSIONS

Counsel:

Ms. Marie Henein Mr. Ernest J. Guiste

Mr. Matthew Gourlay E. J. Guiste Professional Corporation

Henein Hutchison, LLP Mr. Jeffry A. House

Presenting Counsel Counsel for His Worship Errol Massiah

Mr. James Morton

Mr. Robert H. Karrass

Morton Karrass LLP

Association of Justices of the Peace of Ontario

(Intervenor)

DECISION ON HIS WORSHIP’S MOTION FOR LEAVE TO HAVE THE HEARING PANEL ENTERTAIN FURTHER SUBMISSIONS

1. This is a public hearing taking place pursuant to section 11.1 of the Justices of the Peace Act in relation to a complaint about the conduct of His Worship Errol Massiah. Witnesses were called to give evidence in this hearing during the week of July 14, 2014 and the week of July 28, 2014. Evidence concluded on July 31, 2014 and the hearing was adjourned until October 8, 2014 for oral submissions by counsel.

2. Presenting Counsel and His Worship Massiah had the opportunity to file written submissions. Transcripts of all of the testimony heard by all of the witnesses were provided to Presenting Counsel and Counsel for His Worship prior to the filing of submissions. His Worship’s written submissions were due on September 29, 2014. On that date, Mr. Guiste, Counsel for His Worship requested an extension of time until Wednesday, October 1, 2014 to file the written submissions. The request was granted by the Hearing Panel. His Worship’s written submissions were filed on October 1.

3. The hearing reconvened on October 8, 2014 for the purpose of allowing counsel to make oral submissions. Submissions were made on the evidence, on the motion by His Worship Massiah alleging a lack of jurisdiction and on the motion by His Worship alleging an abuse of process. On that date, Mr. House, Counsel for His Worship, requested that a collective agreement referred to during cross-examination of witnesses be made an exhibit and that was done. Mr. Guiste provided additional case law that had been omitted from the Book of Authorities filed with his written submissions, and the Panel accepted the cases.

4. On November 10, 2014, Mr. Guiste, on behalf of His Worship, filed an Applicant’s Motion for Directions re Evidence of (two witnesses whose names are redacted in this judgment). This Hearing Panel issued a decision on November 18, 2014 dismissing that motion. In accordance with section 23(1) of the Statutory Powers Procedures Act, in order to control and prevent any further abuse of this process, we also ordered that there is no further opportunity for His Worship and his Counsel Mr. Guiste to make submissions or re-examine any witness in relation to this Hearing. We directed that Mr. Guiste is to cease sending emails, or correspondence or any further motions about the evidence or the law to the Panel. We stated that the Hearing Panel has reserved its decisions and we rely on counsel to respect the process and await our determinations in due course.

5. Before the Panel issued its decision on the Motion for Directions, His Worship filed another motion in which he seeks leave to have the Panel entertain issues raised in the motion.

6. In this more recent motion, His Worship reiterates an argument already addressed in oral and written submissions made on his behalf by his counsel. He seeks to have the Panel entertain additional arguments on the question of whether the Justices of the Peace Review Council exceeded its jurisdiction when a complaints committee ordered a hearing under section 11(15)(c) of the Justices of the Peace Act.

7. His Worship is arguing that he should be permitted to make the case that, to date, he has received no order that there should be a hearing under section 11.1 of the Justices of the Peace Act, and that, therefore, the Hearing Panel has no jurisdiction to conduct this hearing or to render a decision.

8. Even if this argument had any merit, this assertion from His Worship comes well after His Worship’s Motion for Disclosure. Written submissions were filed on that motion and oral submissions were heard on June 11, 2014. A decision was made on June 12, 2014.

9. The Panel finds that this argument is frivolous and meritless. The Panel finds that the Notice of Hearing, Exhibit 1(A) and 1(B) in this hearing, that was issued on May 31, 2013, clearly informed His Worship that a hearing was ordered by a complaints committee of the Justices of the Peace Review Council pursuant to section 11.1 of the Justices of the Peace Act. The Notice of Hearing states:

notice of HEARING

The Justices of the Peace Review Council (the “Review Council”), pursuant to subsection 11(15)(c) of the Justices of the Peace Act, R.S.O. 1990, c. J.4, as amended (the “Act”), has ordered that the following matter of a complaint regarding the conduct or actions of Justice of the Peace Errol Massiah be referred to a Hearing Panel of the Review Council, for a formal hearing under section 11.1 of the Act.

It is alleged that you have conducted yourself in a manner that is incompatible with the due execution of your office and that by reason thereof you have become incapacitated or disabled from the due execution of your office. The particulars of the complaint regarding your conduct are set out in Appendix “A” to this Notice of Hearing.

The Hearing Panel of the Review Council will convene at [the Justices of the Peace Review Council Boardroom] on Thursday, the 4^th day of July, 2013, at 10:00 a.m. in the forenoon or as soon thereafter as the Hearing Panel of the Review Council can be convened to set a date for the hearing into the complaint.

A justice of the peace whose conduct is the subject of a formal hearing before the Review Council may be represented by counsel and shall be given the opportunity to be heard and to produce evidence.

10. In this motion, His Worship also raises his earlier argument that the existence of the collective agreement in the Region of Durham or the harassment policy in that Region ousts the jurisdiction of the Review Council to consider allegations about His Worship’s conduct and to consider whether that conduct constituted judicial misconduct that warrants a disposition under the Justices of the Peace Act.

11. On November 17, 2014, His Worship’s Counsel filed case law with the motion: Weber v. Ontario Hydro, [1995] 2 SCR 929, 1995 CanLII 108 (SCC); and, Giorno v. Pappas, 1999 CanLII 1161 (ON CA). Both of these cases could have been provided by Counsel for His Worship at the time when written submissions were filed on October 1, 2014 or when the Panel permitted Mr. Guiste to provide additional cases on October 8, 2014. His Worship now seeks leave to have the Hearing Panel consider additional submissions.

12. The Panel does not grant leave for His Worship Massiah to make further submissions. We affirm the view expressed in our decision on the Applicant’s Motion for Directions re Evidence of (two witnesses whose names are redacted in this judgment):

24. In our view, in a hearing such as this, as in any litigation, counsel are expected to make their case in closing submissions and not attempt to supplement those submissions after the fact when new ideas or arguments occur to them.

25. The JPRC Procedures provide that Presenting Counsel and Counsel for the Respondent may, at the close of the evidence, make statements summarizing the evidence and any points of law arising out of the evidence, with the order to be determined by the Hearing Panel. In this hearing, that process was followed. In a hearing before the Review Council, counsel for the parties is expected to make their full arguments with respect to all issues under consideration within the facta that are filed and/or in oral submissions made before the Panel. Once the Panel reserves on its decisions, save exceptional circumstances, the opportunity for further submissions is concluded.

26. In our view, it is not open to His Worship Massiah and his Counsel to provide further written submissions and additional argument to the members of the Hearing Panel on the matters referenced. There has been a full opportunity for submissions throughout this process. There are no exceptional circumstances warranting an opportunity for His Worship or Mr. Guiste to supplement the submissions that were already made in writing and orally on motions during this hearing process and after the evidence concluded. The further submissions sought to be made are plainly an effort to try to add to submissions already made in the written and oral submissions of Counsel for His Worship.

13. As the Panel found in its decision of November 18, 2014 on the Applicant’s Motion for Directions re Evidence of (two witnesses whose names are redacted in this judgment), there is a public interest in the finality of litigation. His Worship was given ample opportunity to be heard and was heard upon the arguments he seeks to raise again. The jurisdiction to reopen submissions after the Panel has reserved is not to be exercised for the purpose of regurgitating arguments already under consideration by the Panel. There are no circumstances that warrant a decision to allow His Worship to reopen submissions and add to his arguments.

14. The Panel notes that His Worship Massiah's decisions to bring meritless motions to try to reargue his case while the Panel is deliberating on its decisions on the hearing could be perceived by the public as consistent with a deliberate attempt to delay the Panel in reaching a final decision.

15. Recognizing that the purpose of this hearing process is to preserve or restore public confidence in the judiciary, the Panel relies upon Justice of the Peace Massiah and his Counsel to comply with the order of this Panel made on November 18, 2014 in the Applicant’s Motion for Directions re Evidence of (two witnesses whose names are redacted in this judgment) that Mr. Guiste is to cease sending emails, or correspondence or any further motions about the evidence or the law to the Panel. The Panel relies upon Justice of the Peace Massiah and Mr. Guiste to respect the Panel’s right to reserve its decisions and retire, without interruption, to consider the evidence, the law and the arguments that were made during the public hearing and then render its decisions.

Dated this 19thday of November, 2014.

HEARING PANEL:

The Honourable Justice Deborah K. Livingstone, Chair

Justice of the Peace Michael Cuthbertson

Ms. Leonore Foster, Community Member

Below is the related decision of the Hearing Panel.

IN THE MATTER OF A HEARING UNDER SECTION 11.1 OF THE JUSTICES OF THE PEACE ACT, R.S.O. 1990, c. J.4,

as amended

Concerning a Complaint about the Conduct of

Justice of the Peace Errol Massiah

Before: The Honourable Justice Deborah K. Livingstone, Chair

Justice of the Peace Michael Cuthbertson

Ms. Leonore Foster, Community Member

Hearing Panel of the Justices of the Peace Review Council

DECISION ON THE APPLICANT’S MOTION FOR DIRECTIONS

Counsel:

Ms. Marie Henein Mr. Ernest J. Guiste

Mr. Matthew Gourlay E. J. Guiste Professional Corporation

Henein Hutchison, LLP Mr. Jeffry A. House

Presenting Counsel Counsel for His Worship Errol Massiah

Mr. James Morton

Mr. Robert H. Karrass

Morton Karrass LLP

Association of Justices of the Peace of Ontario

(Intervenor)

DECISION ON THE APPLICANT’S MOTION FOR DIRECTIONS

2. Presenting Counsel and His Worship had the opportunity to file written submissions. Transcripts of all of the testimony heard by all of the witnesses were provided to Presenting Counsel and Counsel for His Worship prior to the filing of submissions. His Worship’s written submissions were due on September 29, 2014. On that date, Mr. Guiste, Counsel for His Worship requested an extension of time until Wednesday, October 1, 2014 to file the written submissions. The request was granted by the Hearing Panel. His Worship’s written submissions were filed on October 1.

3. The hearing reconvened on October 8 for the purpose of allowing counsel to make oral submissions. Submissions were made on the evidence, on the motion by His Worship alleging a lack of jurisdiction and on the motion by His Worship alleging an abuse of process. On that date, Mr. House, Counsel for His Worship, requested that a collective agreement referred to during cross-examination of witnesses be made an exhibit and that was done. Mr. Guiste provided additional case law that had been omitted from the Book of Authorities filed with his written submissions, and the Panel accepted the cases.

4. On October 8, Mr. Guiste requested that all materials such as motion materials and facta be made exhibits. The Panel’s decision is set out in the transcript of October 8, starting on page 162, line 2:

JUSTICE LIVINGSTONE: Thank you, Mr. Guiste. The Panel considered the issue of what is properly filed as an exhibit and what is not required to be filed as an exhibit. And generally the Panel is of the view that any materials filed, such as Mr. Gourlay referred to, facta, books of authorities, responding facta, et cetera, are not technically filed as exhibits, they are part of the record.

They remain part of the record for any further applications which could follow our decision, but they are not evidence per se and therefore would not be filed.

So in our view, despite the fact that Exhibits 3 through 8 were filed as exhibits, they were in an unusual position in relation to the motion with respect to ban of publication, and perhaps even filed as exhibits inappropriately, but they were and we can't change that.

So our view is that with respect to your request to have the material with respect to disclosure and particulars, the motion that was before this court on which we rendered reasons on, it is not necessary or appropriate that those documents be filed as exhibits.

With respect to the affidavit of His Worship and the materials surrounding that, His Worship was cross-examined on the affidavit, his testimony is evidence. In our view all of the material surrounding that is not evidence per se, it is part of the record but is not required to be filed as an exhibit.

The submissions, the disclosure request documents, which you referred to from November of 2013, they are not evidence. They are part of the record. They will not be filed as exhibits.

With respect to the facta with respect to abuse of process, for which you have argued it only makes sense for fairness and for the integrity of the process that we be informed by having them, we have them. They are part of the record. They do not need to be filed as exhibits.

However, with respect to the report of Mr. Hunt and the letters or correspondence between him and Ms. King, which you requested, Mr. Guiste, be filed as exhibits. We agree that those documents, although part of facta, were referred to on numerous occasions in relation to the jurisdiction and abuse of process, and in fact even in relation to the evidence at the hearing itself. So we agree that those documents should in fact be filed as exhibits and that is so ordered.

5. Consequently, the originating material from Mr. Hunt was filed as Exhibit 30(A), and the letter from the Registrar to Mr. Hunt dated November 3, 2011, was filed as Exhibit 30(B). The responding letter from Mr. Hunt was filed as Exhibit 30(C).

6. On October 8, 2014, after submissions were completed, the Hearing Panel reserved on all three decisions and adjourned the hearing until Tuesday, December 2, 2014.

7. Since that time, His Worship, through Mr. Guiste, has repeatedly corresponded with the Hearing Panel. In a letter, dated October 10, 2014, Mr. Guiste wrote to the Hearing Panel making further arguments as to why certain materials contained in the motion materials should be made exhibits. He also made arguments about the relevance of particular documents and about the credibility of witnesses.

8. The October 10, 2014 letter was provided to the Panel by the Registrar. The Panel responded by email to Mr. Guiste, via the Registrar, as follows:

The Hearing Panel ruled on this issue on October 8, 2014.

We ruled that that the motion records are before the Panel. They were filed and are part of the official record of proceedings. They do not need to be filed as Exhibits in order for them to be available for us to review as we work on our decision.

Please assure Mr. Guiste that we have all of the items he has specifically referred to in his letter.

The Registrar provided an update about this correspondence on the JPRC website.

9. On October 30, 2014, Mr. Guiste sent three more letters to the Panel. Each letter related to typographical errors contained in the written submissions made on behalf of His Worship. The submissions had incorrectly quoted a witness’s evidence and Mr. Guiste provided corrections. He also referenced that he had sought leave on another matter.

10. On November 3, 2014, His Worship, through Mr. Guiste, sought to provide a document called Appendix B to the written submissions that were not included when the submissions were filed on October 3, 2014. Nor was Appendix B provided by Mr. Guiste when the hearing convened publicly on October 8, 2014. The Panel is not prepared to accept an additional appendix that could and should have been filed on October 1, 2014 or on October 8, 2014 before the Panel reserved on its decisions.

11. On November 10, 2014, Mr. Guiste, on behalf of His Worship, filed an Applicant’s Motion for Directions re Evidence of (two witnesses whose names are redacted in this judgment). Presenting Counsel have filed written submissions in response to the motion. His Worship then filed an Applicant’s Reply to Presenting Counsel’s Submissions on the Applicant’s Motion.

12. In the Notice of Motion, His Worship argues that there are two issues that have the potential to impact on the fairness and legitimacy of the hearing. He requests leave of the Hearing Panel to entertain these issues and seeks direction from the Hearing Panel on how best to deal with them.

13. He relies on Section 23(1) of the Statutory Powers Procedures Act, which states as follows:

Powers re Control of Proceedings

Abuse of Processes

s. 23(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

14. The first issue raised by His Worship relates to typographical errors in his submissions, wherein the testimony of a witness was misquoted.

15. The Panel finds that there is no concern of unfairness or illegitimacy in the process arising from the errors in the submissions. The Panel heard the evidence of the witness and made notes. As well, the Panel was provided with a transcript of the evidence. The errors contained in His Worship’s submissions have no impact on the Panel’s ability to make accurate findings of fact.

16. His Worship also seeks to argue that he and his counsel realized on November 3, 2014 that a witness gave testimony that was inconsistent with a statement made by her during the interview stage. He notes that the will-say and the interview transcript show that the witness was expected to say that His Worship “raked me up and down with his eyes”. In her testimony before the Panel, the witness stated and the transcript shows that she said that he “raped me up and down with his eyes”.

17. With this motion, Mr. Guiste has provided emails between himself and the Registrar sent during November 2014 which appear to assert that, prior to November 3, he and his client did not realize what the witness actually said in the hearing room until the transcript showed that the witness said “he raped me up and down with his eyes”. He submits that they did not, therefore, have an opportunity to address the fact of a prior inconsistent statement. His Worship argues that the hearing process is, therefore, in some way unfair or illegitimate.

18. As Presenting Counsel have pointed out in their written submissions on this motion, Counsel for His Worship received the hard copy of the relevant transcript on July 30th and an electronic copy on August 15th. That was many weeks prior to the October 1 date when His Worship’s written submissions were filed. Presenting Counsel noted also that in their written submissions, delivered to Counsel for His Worship on September 15, the particular passage of this witness’s testimony upon which His Worship has based this motion was directly quoted. Presenting Counsel submits, accordingly, that His Worship’s claim that he “learned” of the testimony on November 3, 2014, long after the decisions were taken under reserve by the Hearing Panel, is simply incredible.

19. Presenting Counsel also points out that this appears to be a willful denial by His Worship of Mr. Guiste’s own description during argument on a motion of what he anticipated the witness would say. At that time, he referred to the anticipated statement as “raped me up and down with his eyes”. (Transcript June 11, 2014, page 70, line 17)

20. His Worship, in his Reply to Presenting Counsels’ Submissions on this motion, responds with additional arguments about the credibility of the witness and arguments about how the Panel should construe the evidence. His Worship appears to be suggesting that he should have a second opportunity to cross-examine the particular witness. In his Reply, he states: “The Applicant reserves the right to confront Ms. [name of the witness is redacted] on the inconsistency.”

21. The materials filed by His Worship on this motion include case law on the issue of whether a decision-maker is functus. We find that the authorities provided have no relevance to this hearing, where the Panel has reserved and is clearly still seized of the matter.

22. Presenting Counsel submits that a motion to re-open a hearing after the Panel has reserved judgment is an extraordinary step that should be reserved for the most compelling circumstances. We accept that to be the present state of the law, in effect, extraordinary circumstances are required such as an instance where counsel became aware of a newly decided case which might have an impact on the issues under consideration.

23. Presenting Counsel argues that this motion constitutes an admission by His Worship Massiah and his counsel that they failed to review the transcript and Presenting Counsel’s submissions while preparing their written submissions. Presenting Counsel submits that even if such conduct could somehow be overlooked, the issue of whether the witness said “raked” or “raped” is not significant. It is submitted that in this context, both are figures of speech, not literal descriptions of conduct. We agree with that submission. In our view, this issue has no potential impact on either the fairness or the legitimacy of the hearing. The Panel saw and heard the witness testify and is fully equipped to evaluate the credibility, reliability and meaning of her account. The difference of a single consonant in her description of this event in the context of her evidence is not realistically capable of affecting this Panel’s overall adjudication of the matter.

24. The materials from His Worship and the emails from Mr. Guiste to the Registrar provided in the application indicate that this application relates to his arguments about how the Panel should interpret section 10.2 of the Justices of the Peace Act. We agree with the submission by Presenting Counsel that through written and oral submissions, His Worship has already argued that a “complaint” under section 10.2 of the Justices of the Peace Act must be submitted by the person who was the subject of the justice of the peace’s judicial misconduct. He has already argued there are violations of procedural fairness if Mr. Hunt’s materials are considered to be the complaint. His Worship has already argued that the Panel should exercise its jurisdiction under s. 23(1) of the Statutory Powers Procedures Act to prevent abuse of its processes and impose an appropriate remedy. The Panel has the law and evidence that it needs to deliberate and render its decisions.

25. In our view, in a hearing such as this, as in any litigation, counsel are expected to make their case in closing submissions and not attempt to supplement those submissions after the fact when new ideas or arguments occur to them.

26. The JPRC Procedures provide that Presenting Counsel and Counsel for the respondent may, at the close of the evidence, make statements summarizing the evidence and any points of law arising out of the evidence, with the order to be determined by the Hearing Panel. In this hearing, that process was followed. In a hearing before the Review Council counsel for the parties are expected to make their full arguments with respect to all issues under consideration within the facta that are filed and/or in oral submissions made before the Panel. Once the Panel reserves on its decisions, save exceptional circumstances, the opportunity for further submissions is concluded.

27. In our view, it is not open to His Worship and his counsel to provide further written submissions and additional argument to the members of the Hearing Panel on the matters referenced. There has been a full opportunity for submissions throughout this process. There are no exceptional circumstances warranting an opportunity for His Worship or Mr. Guiste to supplement the submissions that were already made in writing and orally on motions during this hearing process and after the evidence concluded. The further submissions sought to be made are plainly an effort to try to add to submissions already made in the written and oral submissions of Counsel for His Worship.

28. With respect to the particular witness referenced in the materials, the will-say, the interview transcript and the transcript of the evidence are all part of the record already under consideration by the Panel. We do not accept that the failure of His Worship or his counsel to specifically address any inconsistencies on that point provides a basis for further cross-examination or submissions after the Panel has reserved.

29. There is a public interest in the finality of litigation. His Worship was given ample opportunity to be heard and was heard upon the arguments he seeks to raise again. The jurisdiction to reopen submissions after the Panel has reserved is not to be exercised for the purpose of regurgitating arguments already under consideration by the Panel.

30. This public hearing is part of a judicial disciplinary process that has as its objective a goal of maintaining and preserving public confidence. Presenting Counsel argues that this Motion is the latest in a series of efforts by the Applicant, through his counsel, Mr. Guiste, to continue to argue his case after all the evidence and submissions were in and the matter taken under reserve. Presenting Counsel submits that much of this has taken the form of correspondence with the Registrar, including approximately 40 emails since October 8, 2014. Presenting Counsel further submits that, with the exception of His Worship’s letter alerting the Panel to a typo in his written submissions (Motion Record, p. 48), this correspondence is improper.

31. The Panel finds that interruptions such as Mr. Guiste’s letter on October 10 and this meritless motion disrupt the Panel’s deliberations and only serve to risk a delay in the adjudicative process in this hearing.

32. As Mr. Guiste has argued, Section 23(1) of the Statutory Powers Procedures Act provides a tool to assist a Hearing Panel in controlling the proceedings over which it presides. We reiterate the wording of that section:

s. 23(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

33. In accordance with section 23(1), in order to control and prevent any further abuse of this process, we order that there is no further opportunity for His Worship Massiah and his Counsel Mr. Guiste to make submissions or re-examine any witness in relation to this Hearing. We direct that Mr. Guiste is to cease sending emails, or correspondence or any further motions about the evidence or the law to the Panel. The Hearing Panel has reserved its decisions and we rely on counsel to respect the process and await our determinations in due course.

Dated this 18thday of November, 2014.

HEARING PANEL:

The Honourable Justice Deborah K. Livingstone, Chair

Justice of the Peace Michael Cuthbertson

Ms. Leonore Foster, Community Member

NOTE: These documents are posted for the sole purpose of drawing attention to an issue of public importance, judicial misconduct proceedings

E.J.Guiste on Law and Justice

Tuesday, January 20, 2015

J.P. Massiah's Factum: Applicant's Motion for Directions and Related Decisions

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