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
SUBMISSIONS ON BEHALF
OF
HIS WORSHIP MASSIAH
ABUSE OF PROCESS
E.J. 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
Co-counsel for HW Massiah
(NOTE: There is an order banning publication of the identify of witnesses in this proceeding.)
(NOTE: There is an order banning publication of the identify of witnesses in this proceeding.)
PART TWO - ABUSE
OF PROCESS
The Prior Hearing:
1. HW Massiah had been the subject of a hearing under The Justices of the
Peace Act with respect to allegations of gender-based discrimination. A hearing
Panel headed by Justice Vaillancourt heard evidence concerning those allegations, which had allegedly taken place between
Justice Massiah’s ascension to the bench in 2007, and August, 2010. The allegations concerned staff at the
courthouses at 150 Bond Street and 242 King Street in Oshawa, Municipal Region
of Durham. The hearing occurred throughout the latter months of 2011. A decision was rendered in March 2012.
A decision on disposition was rendered on April 12tth, 2012.
Possibility of more
complaints recognized:
2. The complaint which gave rise to that hearing was a
letter, dated August 27,
2010 and signed by a Senior Manager with
the Ministry of the Attorney General for Ontario, for an area including the
entirety of Durham Region. In her
letter, she stated that the allegations involved “gender-based harassment”
against court staff, and that “While
the fact-finding is continuing, I have been advised that more incidents may
surface”.
Letter
of Senior Manager dated August 27th, 2010
HW
Massiah’s Written Submissions - Tab B
3. The
letter goes on to state that “...the attached incidents are considered serious
enough to forward a complaint at this
time. In the event that additional
instances are brought to my attention, they will be distributed to the Justice
of the Peace Review Council in a timely manner.”
ibid.
4. In a
subsequent letter dated January 27th, 2011 Senior Manager added a
complainant concerning an incident which
took place at 242 King Street, and not 150 Bond Street, as in the other
allegations she complained about.
Senior Manager’s letter, ibid. - Tab B
5. On
September 30th, 2011 HW Massiah exercised his right to testify in his own
defence with respect to the allegations of gender-based harassment.
Reasons for Decision date
March 1st
2012 at para 29
6. “During
the hearing into the conduct of Justice
of the Peace
Massiah, the Law Times published an article
dated
October 10, 2011 entitled, “JP accused of sexually
harassing six court
clerks - and purporting to summarize Justice Massiah’s testimony at his
hearing. Shortly after publication, Presenting Counsel at the first hearing
received telephone calls from staff who work at the courthouse located at 604
Rossland Road in Whitby”.
Presenting
Counsel’s Motion Record - Tab A
Presenting
Counsel’s Report to JPRC
(jurisdiction/abuse
of process)
7. These
persons - who were interviewed by Presenting Counsel in the first proceeding
made various allegations against Justice Massiah, most of which were dismissed
by the current complaints committee. A
single incident of gender- based harassment, the “lookin’ good” allegation made
by Ms. X was deemed by the complaints committee to require a response.
HW
Massiah’ Motion Record(June 28, 2013) - Tab 3
Complaints
Committee letter dated Jan.2nd/13
8. In
purportedly investigating previous Presenting Counsel’s Report investigators
interviewed all staff in the Rossland
Courthouse. The allegations from some of the staff included very similar
gender-based harassment allegations as had been the subject of the first
hearing before the Panel led by Justice Vaillancourt.
Reasons for Decision dated
March 1, 2012
Investigation Transcripts -
Vol.1-5
HW Massiah’s Response
Dated Feb.27, 2013 to
the allegations:
9. HW
Massiah elected to provide the complaints committee with a written response
dated February 27th, 2013 to the allegations.
His Worship’s response is comprehensive and reveals the following:
1. an adverse impact on his
ability to answer some
allegations on account of delay;
2. acknowledgements that in some instances
the
allegation was consistent with his manner of
greeting at that time
and that “I would now not
make any comment
about a female appearance
and apologize if such
comment at the time made
Ms. F felt
uncomfortable”;
3. acknowledging that he
addressed Ms. B as
“girl” however the greeting carried no sexual overtones
and essentially he understood that he had a good
relationship with her consistent with the letter which
she wrote on his behalf with respect to the prior
proceedings. (see Bhatacharya e mails)
4. acknowledging that the greeting to Ms F
to the
effect “looking good today” and “looking good today,
Ms. F is consistent with his earlier manner of
greeting some members of the court staff;
5. Denial of Ms. C’s allegation.(confirmed
by Ms. C)
6. Denial of allegation that he
“eyeballed” a female justice
of the peace and stared at her chest. (confirmed by
W)
7. Denial of Ms. D’s improper dress
allegation with a
promise to “establish and maintain
strict boundaries with
all court staff by ensuring that my
door is closed and that
I have completed my dressing before I respond or attend
to my desk or court personnel.”
8. Denial of the Ms.B state of undress
allegation with
an undertaking to “not engage her as a friend or equal team
member based on added training and education.”
9. An inability to recall who Ms. A is or
the event.
However, a candid acknowledgment that her account
is plausible and he was unaware of her. “Going forward,
I would ensure that my door is locked.”
10. An inability to recall Ms. V and the
incident specifically.
Agreed that he has taken off his robes in the presence of
court staff but he “remained fully dressed with black waist
jacket, shirt and dickey or tab on.”
11. “Looking good” comment to Ms. X.
Explained
that he was referring to the number of matters on the
daily Docket. “If Ms. X believes that my comment
to her was disrespectful, I apologize, as it was not
intended in the way it was received.”
12. “Lady in red” comment to Ms. X. Does not
recall the event or the alleged comment. If a comment
was made it was not said in a sexually suggestive
tone. Ms. X herself has no memory of the
incident.
13. No specific recollection of the touching
incident with
Ms. F. No awareness of Ms. F attending his
chambers or expressing any resistance to attend to
deliver papers at any time.
14. “It
was made clear to me at the conclusion of that
hearing that my overly friendly manner and seemingly
relaxed behaviour in dealing with members of the court staff were not received
in the manner intended and was
considered
to be unprofessional. Consequently, my
intention
is to go forward with a more serious and
businesslike
manner in the future, with firmly
established
boundaries for all persons I am required
to
interating (sic) with in and out of court. Further, I
would
remain mindful of all the allegations brought
forward
as I discharge my duties in the future”.
Applicant’s Motion
Record, June, 2013
HW
Massiah Response to allegation - Tab 4
Notice of Hearing
dated May 31, 2013:
10. A
Notice of Hearing was issued and published by the Justices of the Peace Review
Council alleging misconduct as follows:
“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 been known to be unwelcome or unwanted. The conduct resulted in a poisoned work
environment that was not free of harassment.”
Notice of Hearing, May 31,
2013
Exhibits 1A and 1B
11. Paragraph
14 of the Notice of Hearing states:
“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.”
As
above - para 14
Procedural
irregularities
in the allegations:
Delay
12. The
allegations which are the subject of this hearing span from His Worship
Massiah’s appointment to the Bench in 2007 to in and around August, 2010. The very first reporting of them occurred
four years after the first incidents in the Hunt Report and are the subject of
litigation some seven years after the fact in 2014.
13. Other
than to offer a bald assertion of fear for reprisal - none of the witnesses
proffered any credible explanation for the significant and inordinate delay in
coming forward with their allegations.
14. Evidence
at the hearing revealed that the staff bringing the allegations are covered by
a collective agreement and a comprehensive anti-harassment workplace policy
which not only prohibit such conduct but firmly articulate a policy advocating
for prompt action without fear of reprisal.
Collective Agreement
Durham Region Harassment
Policy - Ex.26
15. There
is no evidence that any act or omission of the HW Massiah caused any delay in
either the allegations coming forward or in them being the subject of
litigation.
Lack of particularity
in
allegations:
16. The
allegations brought against HW Massiah are wanting of the following
particulars:
1. Material facts in support of the
communications being
unwelcome
or unwanted;
2. Material facts in support of the
alleged poisoned work
environment
created by HW Massiah;
3. “AA in 2007”. Witness can not remember the other
party present who did the introducing;
party present who did the introducing;
4. Material facts in support of a course
of vexatious conduct;
5. Particulars of date,
time and place for 7(a), (b), (c),
(d), (e), (f), 8(a), (b), ( c), (d), 9, 10, 11, 13.
(d), (e), (f), 8(a), (b), ( c), (d), 9, 10, 11, 13.
Adverse impact
of delay on
ability
to recall material
points:
16. Several of the witnesses were unable to recall material points to the allegations such as date, the content of conversations, alleged occurrences themselves and some were quite forthright in acknowledging that the passage of time adversely impacted on their ability to recall material points.
Testimony of Ms. F - entire
Testimony
of Ms. B - see p.6,22,23,26,
28,
30, 168, 181, 238, 240
Testimony
of M - see
Testimony
of P - see p.104, 126, 127,
Testimony
of W - see p.22, 24, 25, 27,
Testimony
of Ms. Q - see p.125, 130, 131,
133,
Testimony
of Ms. G - see p.156, 157, 166
Testimony
of HW Masiah
Failure to secure evidence:
17. Both
M and P conceded that relevant evidence to make out their allegations regarding
HW Massiah’s in-court conduct such as notes and transcripts could have and should have been secured by
them. P was candid in explaining that
she did not do that because there was in fact no intention by her or management
to move forward with any formal complaint at the time. Presenting Counsel did not call any members of the public who witnessed the alleged
in-court conduct.
Testimony of M and P
Comments welcomed:
18. His Worship Massiah testified that he had
no knowledge from his interactions with the court staff that his comments were
offensive, vexatious or unwelcomed. He
stated repeatedly in his testimony that he felt “well received” and had he
received any hint of displeasure he would cease and adjust his conduct
accordingly.
Testimony of HW Massiah – at p.22-24, 41
Durham Region Managerial
Staff unaware of any harassment
19. Managerial staff who worked with the
persons who brought the allegation testified and indicated that no complaints
were brought to their attention pertaining to HW Massiah to deal with other
than a complaint about HW Massiah’s cologne, which some staff were uncomfortable
with. Ms. Z testified that she conducted her own Inquiry when she heard of the
allegations in the prior proceeding and that turned up no complaints.
Testimony of Z – at p.
167-176
Staff enjoyed protection
of collective agreement
& Durham Region Anti-
Harassment Policy:
20. Managerial staff who worked with the staff
who brought the allegations confirmed that the collective agreement between the
Region of Durham and the bargaining agent for the staff members, CUPE, Local
1764 contained a non-discrimination clause and the Region’s Harassment and
Discrimination Prevention Policy which protected them for reprisals for
exercising their rights under the Human Rights Code etc.
Testimony of Ms. Z – at p.160-61
Testimony
of Ms.H – at p.46-52
Testimony
of Ms. T – at p.18,19
Staff enjoyed working
with HW Massiah:
20. Ms. Z testified that there was a general
feeling that the court staff liked working with HW Massiah. “They enjoyed some of the camaraderie of
working with him” she said at p.177. She
went on to identify a number of the staff members from whom she felt that
sentiment as Ms. U and Ms. D. While she
did not remember at first instance when brought to her statement to the
investigators she acknowledged that at the time of the interview she identified
Ms. Y as among one of the court staff who enjoyed the camaraderie that they had
with HW Massiah.
Testimony of Z – at p. 177-81
*Note adverse impact of delay on her memory
– p.180-81
21. On consent the parties agree that The
Region received no grievance on this issue.
Admission
(no grievance filed)
22. H one of the managers in the Court
Services Area testified that HW Massiah had in the past complimented her on
looking good and losing weight and she took no offence to his comments but saw
them as a compliment.
Testimony of H – a p.45, 86
23. Ms. V, a witness called by Presenting
Counsel, gave insightful evidence into HW Massiah’s raport with the court
staff. She said:
“I thought
he was very nice. I thought he was friendly,
approachable,
I thought he was nice. A lot of them,
a lot of the
justices, you feel nervous, you don’t want
to speak to
them. He was more workable and friendly.”
Testimony of V – at p.173
“But people
were happy to see him rather than some of
The other
ones that come in. Again, I don’t know if that’s
Because he
would be considered a good-looking older
Man, or if’s
because he was friendly and approachable,
People liked
him, as opposed to some of the other
Justices of
the peace who talk to you like they’re
I don’t know....just
like they’re much better than
You, which
may be the case, but you know, certain
ones treat
you like you’re on the same level they are,
which we do
appreciate.”
as above at p.178
It didn’t really bother me
that much; I was(sic) really offended
by it. I’m
surprised everybody else was offended by it,
because they
never seemed to have a problem with it at
the time.”
As above at p.184
24. Ms. V also provided some insight into the
work environment and the propensity and the standard of conduct with respect to
sexual comments/jokes. She said:
“just jokes,
in particular, about all sorts of the worst kind of
sex jokes,
most inappropriate things you can possibly think
of have been
probably talked about, more than once a day
I would
say.”
As above – a p.189
25. Ms. V testified that a comment she
attributed to HW Massiah along the lines of “I am glad we are off the record so
I can tell you you’re looking good was welcomed as a compliment on her part.
As above – at p.189
26. Ms. V provided some evidence on the
frequency of the statements or comments made by HW Massiah towards her
appearance. She said:
“I’ve
only heard him say one other time to someone
in
the office that their hair was nice. Again, this is not
like
an everyday thing. We would see each other,
not
often, but I mean, sometimes we would see
each
other, it would(sic) be like every single time there
would
be a statement or a comment made towards
my
appearance.”
As above at p.176
27. The following set of questions and
answers from Ms. V provides some insight into the culture or standard of
conduct of the work environment:
Q. Was he considered attractive ?
A. I’d say he was yes.
Q. Was
there talk to that effect amongst the staff ?
A. Yes.
Q. Can you describe that for us ?
A. Um, well, um we would find out who the
Justice of the Peace is, and
You know,
courtroom 105 that day, if was His Worship Massiah, we
would say, um -- I don’t know, we’d jus say “oh” -- I
don’t remember*
exact
terms its been a long time.
Q. Sure
A. But people were happy to see him.....
As above at p.177-78
*Adverse
impact of delay on memory
Ms. P:
“No intent to complain
about alleged court conduct”
28. Ms. P provided evidence on her state of
mind at the time she alleges that HW Massiah was engaged in flirtatious conduct
towards attractive female defendants in his court room. She said:
“I
suppose that in my mind, if there was a complaint
going
forward, or somebody wanted to appeal, that that
effort
would be necessary.(transcripts – notes) But
at the
time
when it was happening there wasn’t any intention
by
me, or any movement in our office that I was aware
of,
by management, to take it any further.”
Testimony of Ms. P – at p.118
29. Ms. P expanded on her lack of intent to
complain at the time of the allegations in her investigation interview in June
2012. This evidence was put before the
Hearing Panel in re-examination. She
said the following:
“..The
only time I would consider coming forward to
complain
about a judicial officer that I’m regularly
in
front of, is if I can demonstrate objectively by transcripts
or
something, a pattern of conduct. An isolated incident, I
would
never do, quite frankly....So as a prosecutor, quite
frankly,
I can’t speak for my colleagues, but I would very
much
hesitate to either do an informal complaint or a formal
complaint,
unless it was so egrigous and such a pattern of
conduct
that I was personally aware of, or could obtain
records
about, before I would ever do that. Because I
would
be afraid of the retribution and it affected the cases
that
are before the court.”
Testimony of Ms. P – at p.141-42
Evidence of improper
purpose
in initiating the
subject allegations:
30. Ms.
Y - (July 15, 2014 at p.101 - 117)
testified that “we knew that the hearing was happening before it happened - she
was “pissed off” when she read the Law Times article regarding HW Massiah’s
testimony, she was concerned that he would get a “slap on the wrist” and
accordingly she decided to come forward after P called her, encouraged her an
she then decided to “step up”. Y
testified that P provided her with a telephone number to call. P denied this.
31. M
- (July 18, 2014 at p.33-35 testified that there was a lot of talk amongst his
staff and that the Law Times article “was kind of the catalyst that increased
the level of conversation amongst my staff and myself.” He testified p.60) that that he too had a
concern that the first Hearing Panel might not give an appropriate penalty.
32. X (July
17, 2014) testified that she too read the Law Times article and was angered or
troubled by its content and in particular HW Massiah’s suggestion that there
may have been collusion. She felt the
need to step up for the younger women coming up in the profession she said. Her
will say to Presenting Counsel raised only the “looking good” incident.
33. Y
was clear in her testimony that now P was the person who called her and
pushed her to “come forward”. Ms. Y
testified that now P went so far as to provide her with the phone number for
Presenting Counsel. P denied pushing Ms.
Y to “come forward”. Interestingly, it is P who remembers the “Lady in Red”
issue.
34. The
prosecutors' group had been following the first hearing through informal
mechanisms for some time and Ms. Y candidly admitted that “We knew that the
hearing was happening before it happened.
They were aware of the fact that the hearing involved allegations of
gender-based discrimination at a nearby courthouse.
35. Nonetheless,
they made no effort to bring forward any allegation. However, After Justice
Massiah testified in exercise of his right to full answer and defence, Ms. X of
the Prosecutors’ office became angered by the content of that testimony. She
spoke to her supervisor and to Ms. P. The latter then called Ms. Y to encourage
her to find instances which could be be brought forward. Clearly, Ms. B knew about the prior
proceeding. She provided HW Massiah a positive character reference letter.
“We
knew that the hearing was happening
before
it happened.
Testimony of Y – at p.101
E mails between Mr. Bhatacharya and
Ms.
B – Ex. 25
36. While Ms. X
testified that her office was “in total lockdown” during the first hearing, her
supervisor M testified quite differently, it is submitted. He stated
that his office, “everybody in the office” followed the first hearing with
interest as it occurred, and before the Law Times article was published. He
said that information flowed from staff and admin staff both inside the
courthouse and informally at social gatherings and elsewhere. He indicated that
he personally knew some of the clerks who had complained in the first matter.
He would not exclude the suggestion that information was flowing to him from
these clerks in particular, though he could not say so definitely.
Testimony of Ms. X - July 17th, 2014
Testimony of M - July 18th, 2014
37. While he claimed
in evidence that his statement to investigators “I felt a need to support
the clerks” referred to some future
feared transgressions against unspecified clerks, it is submitted that he
actually made his call to Mr. Hunt to support the clerks at the first hearing,
whose testimony had been disputed by Justice Massiah, and which came to his
attention through Ms. X and her outrage over Justice Massiah’s testimony.
Testimony of M, July 18th, p. 50-55;
Testimony
of X, July 17th, p. 75, lines 3-25.
38. While M claimed
that his statement to investigators, that he came forward because “I felt a
need to support the clerks” referred to some future feared transgressions
against clerks who had not yet complained, it is submitted that he actually
made his call to Mr. Hunt to support the clerks at the first hearing, whose
testimony had been disputed by Justice Massiah.
Testimony of M - July 18th, p. 54-56
39. If he made his
call to support the clerks in his own building, who had not complained at that time, either formally
or to him personally, it is submitted that he did so because he was concerned
the first panel would give Justice Massiah a “slap on the wrist. He thought “those clerks were perhaps
vulnerable and could be ending up in the same situation with His Worship.”
Testimony of M - July 18th, 2014
Page 55, lines 5-10; and at page
61, lines 1-11
40. It is submitted
that M was awaiting developments in the first hearing before stepping forward
to make allegations; as well, he was concerned that the panel in the first
hearing would not make an appropriate decision as to penalty (the slap on the
wrist concern), and thus made his allegation to increase the likelihood that a
more severe penalty would be imposed.
41. It is submitted
that, had M truly believed that Justice Massiah’s activity on the bench in the
years 2007-2010 (the “ogling” allegations) brought the administration of
justice into disrepute, he would most certainly raised the issue then. And, it
is submitted, it would not have been “to support the clerks”. As he stated to
investigators:
“It bothered me,
but not to the extent that I felt I had to take action or go see one of his superiors or even bring it to
the attention of my boss. I didn’t do that. It bothered
me, it seemed unusual inappropriate is probably another word to use, but not to the extent that I felt I had to take
action or even take notes.”.
42. Ms. X testified
that “someone” sent her a copy of the Law Times article summarizing Justice
Massiah’s evidence at the first hearing. Prior to that, she clearly stated in
her June 6, 2012 investigation interview, “Because truly in the whole scheme of
things it was fairly minor in nature.”
43. However, she
disagreed with the testimony of Justice
Massiah that there was no hierarchy in the court setting, and also that the
clerks may have misunderstood or colluded in their allegations. His testimony
“incensed” her.
44. She therefore talked with others in the
prosecutors’ office, and decided to bring forward her allegations. Each of the
other prosecutors “independently” chose to bring forward a complaint at the
same time.
45. She also
testified that her intervention was caused in part by the concern that the
first Panel would give Justice Massiah a “slap on the wrist”, whereas she was
motivated to “stop Massiah” for future generations of women clerks.
46. While Ms. X claimed to believe
that her career would be in jeopardy were she to make a complaint against
Justice Massiah, she also testified that she wouldn’t bother going to her union
for protection. She stated, wrongly, that a union complaint under the
Collective Agreement couldn’t touch Massiah. She stated that she doesn’t go to
the union in any event.
47. It is submitted
that her testimony along with that of P that, if they had complained, other
justices, misinformed by Justice Massiah, would retaliate against them in their
judicial decisions or comportment, is the rankest speculation. If such
retaliation had been their concern, it is unclear why it would not still be
operative when she made the complaint days after the Law Times article, it is
submitted. Their reference to fear of retaliation was not believable and should
be rejected by the Panel.
Ms. F:
48. Sid not want to make a complaint
against Justice Massiah. Eventually, when she was “pressured” by Y to do so,
she went to management to complain about this pressure. She stated she did not
remember what had occurred. She told one witness at the time that Justice
Massiah had “touched her hair”, something which could easily be accidental in a
closed space. Later, she claimed that the incident involved an utterance and no
touching, and she wanted to get on with her life.
49. She did not claim to be fearful of making
a complaint, and in fact Ms. Z revealed that she had made a complaint
against a different Justice of the Peace, evidence that she was aware of the
procedures and could act if she felt it important.
50. It is submitted that, even if her
interview by investigators is taken to be a “complaint” she cannot demonstrate good faith as required by human rights
jurisprudence to overcome the dated nature of her allegations.
Ms. B:
51. Her viva voce evidence was entirely unreliable, and it is submitted, can be usefully compared
to the emails sent to her and received
by Mr. Bhattachrya, counsel at the previous hearing. Those provide a time-
sensitive record of her feelings about Justice Massiah at the time. They show
that she had many good things to say about Massiah in September 2011, things
which essentially confirm Justice Massiah’s testimony that he was well-received
in the Rossland Courthouse.
52. The email record confirms that she would
be unable to provide character evidence for Justice Massiah because of
“pressure” within the office. Her email to that effect is dated just subsequent to the date of the Law Times
article, and when the prosecutors group was seeking out complainants among
staff there.
Ex - 25
53. She also told investigators that “the
outcome” of the first case convinced her that she had been wrong to have
believed that Justice Massiah’s behaviour had been appropriate and simply a
reflection of his culture, ie. “the islands”.
Testimony of B –
p.36-38 etc.
Legal Argument: Abuse of
Process
1. We have argued in Part One that the failure of
the JRPC to follow its own procedures and the clear requirements of the Act,
resulted in a loss of jurisdiction. A statutory amendment
to the Act would be necessary in order for justices of the peace in Ontario to
be investigated and disciplined in this manner.
Part One to this Memorandum, supra.
2. In the alternative, if the arguments set
out in Part One above is not accepted that the Hearing Panel has the
jurisdiction to prevent an abuse of process and fashion a remedy which it sees
as fair and just in all of the circumstances to remedy the procedural
irregularities which took place in this case.
Allegations assert “sexual
harassment”,
“poisoned work environment”
founded on
Human Rights Code, R.S.O.
1990 c H 19:
3. As the
alleged misconduct in this case is clearly founded upon rights and public
policy articulated in the Ontario Human Rights Code the Hearing Panel is called
upon in this case to adjudicate matters which require them to apply the Human
Rights Code.
Panel obligated
to apply whole law:
4. In
Tranchemontagne v. Ontario [2006] 1S.C.R. the Supreme Court made
it very clear that “statutory tribunals empowered to decide questions of law
are presumed to have the power to look beyond their enabling statues in order
to apply the whole law to a matter properly before them.
9. IT IS RESPECTFULLY
SUBMITTED THAT, when a statutory body such as this
Hearing Panel is authorized to refer to human rights principles not
specifically contained in its statute (here, the JPA), it must apply the Human
Rights Code (hereinafter the Code) in its entirety, including the protective
provisions which require that complaints be sufficiently particularized, and in
accordance with the limitation period stipulated by the Code. Anything less would be inconsistent with the
quasi-constitutional status and legislative supremacy which the Ontario
Legislature stipulated for the Code.
Tranchemontagne, supra
4. The right
to be free from sexual harassment under the Code places a duty on the employer,
Durham Region, and not on a judicial officer like HW Massiah.
Relevant statutory provisions (below)
s.7(2)
Human Rights Code
5. Both the
Human Rights Code and the procedures of the HRTO provide for strict rules with
respect to particulars and a limitation period.
6. The timeliness of a complaint
concerning discrimination of any kind is always highly relevant. For that reason, both the Federal
Human Rights Code and the Ontario Provincial Code include a limitation period,
which can be overcome in very limited circumstances. .
Human Rights Code, s. 34
7. In Ontario, the Human Rights Code has quasi-constitutional authority.
Where provisions of the Code conflict with other law, it is the provisions of
the Code which are to be applied.
Ontario Human
Rights Code, s. 47(2)
8.
As the Supreme Court of Canada has stated with reference to s. 47(2):
“This primacy
provision has both similarities and differences with s. 52 of the Constitution
Act, 1982
, which announces the
supremacy of the Constitution. In terms
of similarities, both provisions function to eliminate the effects of
inconsistent legislation. At the end of
the day, whether there is a conflict with the Code or the Constitution, the
ultimate effect is that the other provision is not followed and, for the
purposes of that particular application, it is as if the legislation was never
enacted.”
Tranchemontagne v. Ontario
(Director, Disability Support Program),
[2006] 1 S.C.R. 513, 2006 SCC 14 at paragraph 35
10.
Under the Ontario Human Rights
Code, allegations of gender or other discrimination must be made in a timely
fashion, absent a positive showing of good faith. While this hearing is being held under the
Justices of the Peace Act, it is submitted that the underlying principles of
human rights jurisprudence are fully applicable to this hearing otherwise HW
Massiah is being denied a fundamental right to fairness.
11. S.
34(1) of the Human Rights Code sets out a one year limitation period for the
laying of a complaint. S. 34(2) allows the waiver of this limitation where
there is a demonstration of good faith, and there is no substantial prejudice
occasioned. The section reads as follows:
34. (1) If a person believes that any of
his
or her rights under Part I have been infringed
,
the person may apply to the Tribunal for an order under
section 45.2,
(a)
within one year after the incident
to which the application relates; or
(b)
if there was a series of incidents,
within one year after the last incident in the series. 2006, c. 30,
s. 5.
12.
Late applications
(2) A person may apply under subsection (1)
after
the expiry of the time limit under that
subsection
if the Tribunal is satisfied that the
delay
was incurred in good faith and no
substantial
prejudice will result to any person
affected by the delay. 2006, c.
30, s. 5.
13. Human
Rights Code jurisprudence identifies the underlying purpose of the limitation
period as one of insuring fairness:
"The
overarching intention of the section
has
to be in large part to insure fairness
between the parties, both in insuring these
allegations
are brought expeditiously, and
equally, that Respondents need not respond
to
allegations from the distant past."
Wanigasekera
v. Hydro One Networks
2010 HRTO
2356 at paragraph 13
Smith v.
Rock Tenn et al 2014 HRTO 729
14. It is submitted that a Justice of the Peace accused of the violation of
human rights principles is entitled to "fairness between the parties"
as well. It would be erroneous to provide a sitting Justice of the Peace or
Provincial Court Judge with less procedural protection than is received by a
landlord or an employer subject to a human rights complaint, it is submitted.
He or she should not have judicial security of tenure put at risk because of
claims that would not pass muster under the Human Rights Code, it is submitted.
15. None
of the allegations which form the subject matter of the present hearing were
made in a timely manner, even if they were “complaints” as defined by the
Justices of the Peace Act., it is submitted. Some of the allegations refer to
Justice Massiah’s first few days in office, when he was being introduced to
staff, ie. 2007. The latest allegation is that of Ms. X, who stated that
Justice Massiah directed his “looking good” comment to her in early spring or
summer of 2010. She first brought the matter to the attention of the
authorities in October, 2011.
16. Where a complaint is made under the
Human Rights Code in an untimely manner, the Board will reject the complaint
unless there is a positive showing that the delay was occasioned "in good
faith". Good faith does not mean an absence of bad faith.
“Furthermore,
the requirement of good faith
means
that the person pursuing the human rights
complaint
must show more that an absence of bad faith.
This is
consistent with the policy objective that
human
rights claims should be dealt with expeditiously”. (emphasis
added)
Miller v. Prudential
Lifestyles Real Estate
2009 HRTO 1241 Canlii
(see Tab 7 – Smith)
17. The test for good faith applied in human rights jurisprudence in Ontario
can be desribed as follows:
“[45] In determining whether or not the applicant operated in good faith in
this case, I take into account a number of factors. In Lafleur
v. Kimberley Scott, 2009 HRTO 1141 (CanLII), 2009 HRTO 1141
(CanLII) at paragraph 8, the Tribunal said as follows:
In another context,
the Ontario courts have had occasion to interpret the phrase “delay that has
been incurred in good faith”. To
establish that delay in pursuing one’s rights has been incurred in good faith,
it must be shown that the applicant acted honestly and with no ulterior motive. (Hart
v. Hart (1990), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v Scherer 2002 CanLII 44920 (ON CA), 2002 CanLII 44920 (ON C.A.), (2002) 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been
incurred in good faith where it was due to wilful blindness to the need to make
inquiries about one’s rights: Webster v Webster Estate, [2006] OJ No.
2749 (ON S.C.). The courts have held
that “failure to act in ignorance of one’s rights may, in some circumstances,
amount to “good faith”. However, it is
not enough for a party who must establish good faith to say that he or she was
ignorant of their rights. They must also
establish that they had no reason to make enquiries about those rights.” (Busch v Amos, [1994] OJ No. 2975 (Ct. J.
(Gen. Div.), cited in Scherer, supra).”
Hunter v. Vermeer
2010
HRTO 669 at paragraph 45 (canlii)
18. Waiting for some other legal
proceeding to conclude before pursuing ones' rights
will not provide a valid
explanation for making a complaint under the Code. Ignorance of one's rights
similarly does not provide a valid explanation, unless the Applicant
establishes that he or she had no reason to make inquiries about his or her
rights.
Simon
v. Peel Regional Police Services
2010
hrto 433 canlii
Delay not adequately
explained:
19. IT IS
RESPECTFULLY SUBMITTED THAT the evidentiary record is clear that there does not
exist any good faith explanation for the delay in the court staff asserting
their rights in all of the circumstances of this case and the evidentiary
record confirms that HW Massiah suffers
substantial prejudice on account of this delay. That prejudice manifests in the following
manner:
1. He is called upon twice to answer to
allegations which
had
they been initiated promptly would have been the
subject
of the proceedings before Justice Vaillencourt;
2. Senior Manager, the original, complainant, was
clear that
based
on her understanding further allegations may be forthcoming;
3. HW Massiah was the subject of a hearing
where a
Disposition
was rendered which acknowledged
that
public confidence in the administration of
justice
was not lost and that he had the capacity
for
rehabilitation and they were satisfied he would
not
re-offend;
4. The subject allegations not only mirror
the alleged
conduct
on the first hearing but they also either
pre-date
them or take place at the same time;
5. Paragraph 14 of the Notice of Hearing
HW
Massiah
makes it clear that a record of
prior
misconduct is being asserted against
him
for claims which could have and should
have
been the subject of the first hearing
had
the court staff asserted their rights as
they
were obligated in law so to do;(Angle –
Tab15
– Grandview – Tab 16 – Bank of B.C.
Tab
17 – Johnson – Tab 18)
6. Statutory enactments, collective
agreement
language
and a comprehensive harassment
prevention
policy was in place to protect
the
court staff yet they sat on their rights;
7. The evidentiary record reveals that
pretty
much
all of the witnesses in this hearing
including
HW Massiah laboured under an
impediment
to remember relevant points
in
the evidence; (Blencoe – Tab 14)
8. A substantial portion of the
allegations
were
vague in terms of when they
happened;
(Smith – Tab7 –Renin Corp – Tab 8)
9. HW Massiah has been out of duty since
the
first set of allegations, August, 2010;
9.(sic) HW Massiah has had to incur
substantial
legal
costs to respond to these two
sets
of allegation when he ought to have
answered
one.
20. Does the failure of the court staff to
bring their allegations against HW Massiah in a timely manner so that they
could have been litigated at the Vaillancourt hearing cause those allegations
to be subsumed in the prior Disposition on the specific facts of this case or to otherwise invoke the legal doctrines of
res judicata and cause of action estoppels ?
21. IT IS RESPECTFULLY SUBMITTED THAT it
does.
22. The Supreme Court of Canada has set out
the rule which applies in both criminal and civil cases, which prohibits the
splitting of a case against an accused or respondent:
23. ‘…..The
general rule is that the Crown, or in civil matters the plaintiff, will not be
allowed to split its case. The Crown or the plaintiff must produce
and enter in its own case all the
clearly relevant evidence it has, or that it intends to rely upon, to establish
its case with respect to all the issues
raised in the pleadings; in a criminal case
the indictment and any particulars: see R.
v. Bruno (1975), 27 C.C.C. (2d) 318 (Ont. C.A.), per Mackinnon J.A., at p. 320, and for a civil case see: Allcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic
Displays Ltd., [1967] 1 O.R. 18 (Ont. C.A.), perSchroeder J.A., at pp. 21‑22. This rule prevents unfair
surprise, prejudice and confusion which could result if the Crown or the
plaintiff were allowed to split its case, that is, to put in part of its
evidence‑‑as much as it deemed necessary at the outset‑‑then to close the case and after the defence is complete to add
further evidence to bolster the position originally advanced. The underlying
reason for this rule is that the defendant or the accused is entitled at the
close of the Crown's case to have
before it the full case for the Crown
so that it is known from the outset what must be met in response.”
R.
v. Krause [1986] 2 SCR 466 at paragraph 15.
24. In the instant case, it is submitted that
any proceeding against Justice of the Peace
Massiah for gender-based harassment of office staff was required to
produce all available evidence at the original hearing. In Johnston v. Law Society of P.E.I. , Chief
Justice Carruthers of the P.E.L. Supreme Court--Appeal Division, summarized the
law in this regard at paragraph 15:
“The
most recent judgment of the Supreme
Court
of Canada on the principle of res judicata
in
Town of Grandview v. Doering (1975),
61
D.L.R. (3d) 455, [1976]' 2 S.C.R. 621 , [1976]
1
W.W.R. 388, Ritchie, J. wrote the judgment
of
the majority of five, while Pigeon, J., wrote
the dissent of the
remaining four learned
Supreme
Court Justices.
The
legal rules I find applicable to these
proceedings,
and which I extract from the
reasons
of Ritchie, J., are as follows
(pp.
455-62 D.L.R., pp. 630-9 S.C.R.):
1.
Where a given matter becomes the
subject
of litigation the law requires
the
parties to bring forward their whole case.
2.
This applies where the issue sought to be
litigated
anew was not pursued in the
first
action either through negligence,
inadvertence
or even accident and
covers
every point which properly belonged
to
the first action.
3.
In special circumstances one party may be
allowed
to pursue the same matter in a second
action
but only if he can show that the new
facts
he has discovered could not have been
ascertained
by reasonable diligence on his part
and
presented by him in the first action.
4.
The burden lies upon the party who brings
the
second action to at least allege the new facts
could
not have been ascertained by reasonable
diligence
in the first instance.”
25 IT IS RESPECTFULLY SUBMITTED THAT any facts which are the
subject of the present proceeding could have been discovered by reasonable
diligence in the first instance, if in fact there were any such facts. There
are no special circumstances here which could justify waiving of these rules,
it is submitted.
Krause,
supra
PREJUDICE
26. It is submitted that the failure to deal
with all allegations of gender-based harassment of clerks and other staff in a
single hearing resulted in prejudice to Justice Massiah separate and apart from
that delineated above.
27. HW Massiah was cross-examined twice, which
in itself gives rise to a perception of impropriety. Presenting Counsel, is
given a second opportunity to cross examine as to character, and to use the
testimony at the first hearing to attack the Respondent’s character and
credibility.
R.
v. Biddle, [1995] 1 S.C.R. 761
paragraphs 21-25
28. Presenting Counsel at the first hearing, who
was aware of the Rossland Road allegations against Justice Massiah, directed
the Panel to considerations “at the upper end” of possible dispositions. Justice Massiah’s counsel proposed counselling,
written apologies, along with a 10 day period of suspension. In its
disposition, the panel was of the view that a programme of counselling along
with a short suspension and written apologies was appropriate.
Justice of the Peace Errol Massiah –
Reasons for Disposition - Para 1-4, 46
29. The evidentiary record shows that the allegations which were brought forward in October 2011 were made as a result of prosecutors’ belief that Justice Massiah was not telling the truth and that he would get “a slap on the wrist” or “a kiss” from the first Panel.
30. This action constituted a
collateral attack on the first Panel and its disposition, it is submitted. The
counselling ordered as part of the first disposition was suspended, and Justice
Massiah was unable to benefit from the full course of the ordered counselling.
The splitting of the case in this manner also upended the first Disposition,
which has not been completed as yet.
Testimony of Massiah, cite.
31. The prejudice suffered thereby
is crystalized in paragraph 1 of Presenting Counsel’s Argument to this panel
and paragraph 14 of the Notice of Hearing, where Justice Massiah is faulted for
not having learned from the earlier, interrupted counselling notwithstanding
the clear evidence from as early as his response to the complaints committee
that he did
Presenting Counsel
Paragraph 1
32. “That
His Worship continues to try to justify
clearly inappropriate
conduct – even after having
been cited by a
previous Hearing Panel for
Similar conduct and
undergone educational
counselling to ensure
future compliance – is
deeply concerning.
His Worship’s actions
amount to a pattern of
conduct which has
harmed public confidence
in himself as a
judicial officer and the administration
of justice.
As above – para 1-2
33. Presenting Counsel at this
hearing may, if judicial misconduct is found, make a second
recommendation. It is submitted that the
ability of Presenting Counsel to make a second recommendation creates potential
prejudice for Justice Massiah.
34. The lack of timeliness in the
making of the complaints in the matter at bar has allowed collateral concerns
to become operative, and to deny this panel timely evidence of how Justice
Massiah was perceived and treated at the Rossland Courthouse at the time of the
allegations. The changed attitude towards justice Massiah is evidenced by the
testimony of the Supervisor, Z, that her informal investigation revealed no
complaint against him and by the testimony of V, in evidence not contested by
Mr. Gourlay and the evidence of B and the e mail chain along with HW Massiah’s evidence on being “well
received”:
“I’m
surprised that everybody else was
offended
by it (ie. Justice Massiah’s behaviour)
because
they never seemed to have a problem with
it
at the time.”
Evidence
of Ms. V– p. 185
35. Given that consensual
behaviour cannot amount to harassment, it is submitted that the loss of
time-sensitive evidence of the attitudes of the staff towards Justice Massiah
has caused him prejudice. In several instances, he cannot recall the incident
which is alleged to have occurred; in others allegations made against him in
2011 (i.e. the chambers not-fully-dressed allegations) were entirely different.
For example, Z testified that staff members thought Justice Massiah was “hot”
and a man in very good physical shape; one staff member told her they liked to
surprise him with his shirt off.
36. The prosecutors office (M, P,
X) had informal access to the evidence of the first hearing, and discussed it
among themselves. This allows witnesses to consciously or unconsciously tailor
their evidence. Had their been a single proceeding, no such tailoring could
take place, it is submitted.
Standard of Proof, Credibility and Reliability:
37. 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.”
38. “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.
39. Credibility relates to the witness’s
honesty and sincerity, while reliability encompasses the accuracy and
fallibility of the evidence.
40. The traditional test set out by the
British Columbia Court of Appeal in Faryna
v. Chorney [1952] 2 D.L.R. 354 is applicable here:
“Opportunities for knowledge, powers of
observation,
judgment 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
41. 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
REMEDY:
42. IT IS RESPECTFULLY SUBMITTED THAT in
applying the “whole law approach” mandated by the Supreme Court of Canada in
Tranchmontangne (supra) with respect to the allegations of misconduct against
HW Massiah the current proceedings invite a finding of abuse of process on the
following grounds:
1. The rights asserted, namely, to be free from
sexual harassment in
the workplace and the
right to a workplace
free of sexual harassment
are not common law
rights but rights with their
genesis in the
Ontario Human Rights Code;
2. Under that statute it is the employer, the Region
of Durham who has a
duty to provide and safeguard
these rights for
their employees and not judicial
officers;
3. The constitutional right to judicial independence
is compromised by
placing such a duty on a
sitting judicial
officer where the facts show
that the employer had
the proper policies and
tools in place to
safeguard these rights, including
Ms. Z's preliminary investigation
which turned up no
complaints, Senior Manager’s
statement in her
letter that more may come,
evidence from
management and HW Massiah
that he was in fact
“well received” at the
material times;
4. The Human Rights Code’s limitation period
is applicable in the
circumstances of this case
and not invoking it
results in substantial
prejudice and
unfairness to HW Massiah;
5. Under human rights jurisprudence the matters
complained of are
only unlawful in the absence
of consent and the
evidence shows consent or
an inability to find
on the basis of clear and
convincing or cogent
evidence that consent
was lacking in light
of the impact of delay
on the memory of both
witnesses and
HW Massiah and the
failure of the subject
witnesses like Ms. P and Mr. M
to secure what would
have been relevant
evidence on aspects
of the case;
43. IT IS RESPECTFULLY SUBMITTED THAT on the
grounds articulated above alone these proceedings ought to be stayed or such
other remedy that counsel may speak to and the Hearing Panel may entertains as
to continue them undermines the integrity of the process and the Rule of Law.
44. IN THE
ALTERNATIVE, IT IS RESPECTFULLY SUBMITTED THAT the process by which the
complaints against Justice Massiah were proffered, amount to an abuse of
process in that the case against him was split, contrary to the holding in Town of Grandview v. Doering (supra) and the doctrines of
res judicata an cause of action estoppel, causing the current allegations to be
subsumed in the remedy ordered by the Hearing Panel chaired by Justice
Vaillencourt. In light of his written response to the
allegations, the similar nature of the allegations, the time-frame of the
allegations and the prior Hearing Panel’s Disposition the decision to send this
matter to a hearing in the absence of reasons was arbitrary and devoid of
natural justice and fairness.
45. All
of which is respectfully submitted. The
Applicant reserves the right to seek leave to respond to any submissions made
by Presenting Counsel in their reply on the motions since they failed to
address these matters in their submissions and not allowing HW Massiah to
respond to them may create an unfairness to him.
September 30th, 2014.
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