E MAIL COMMUNICATIONS REGARDING SERVICE AND FILING OF REPLY
TO PRESENTING COUNSEL’S SUBMISSIONS ON COMPENSATION AND
HEARING PANEL’S DECISION DENYING RESPONDENT A RIGHT TO
ANSWER RELEVANT POINTS RAISED BY PRESENTING COUNSEL
1- May 27th, 2015 @ 3:42 PM
– E.J. Guiste to Marilyn King, Marie Henein, Jeffry House, Mathew Goulay and James Morton
Please find attached the Respondent’s Reply Submissions to PC’s submissions.
Four copies are on way for the Hearing Panel. I have already raised the issue of
The propriety of the Respondent having an opportunity to respond in accordance with
The practice granted to PC to date.
In the event that leave is required, I hereby request such leave from the Hearing Panel.
2 - May 27th, 2015 @ 3:57 PM
- Marilyn King(Registrar) to E.J.Guiste, Marie Henein, etc.
I noted that you have sent an e mail with an electronic document prior to waiting for a decision from the Panel.
The Panel has made its decision and it is attached.
Marilyn E. King, Registrar, Justices of the Peace Review Counsel
3 - May 27th, 2015 @ 4:31 PM
- E.J. Guiste to Marilyn King, Marie Henein, Jeffry House, Matthew Gourlay, James Morton
Regrettably, the Reply Submissions had been prepared, served and filed prior to receipt of this decision.
I politely request that the materials be provided to the Hearing Panel for their review and
consideration. I hereby request leave of the Hearing Panel to receieve and consider the
Reply for the following reasons:
1. Respondent is entitled to answer to points 1 – 4 in the Reply;
2. Counsel, EJG, is entitled in fairness to address the points raised by PC impacting him;
3. The Reply is a fair and proper reply to the issues raised;
4. The Reply assists the Hearing Panel in its work;
5. There is in fact no prejudice to anyone in receiving the Reply;
6. Adjudication of a salient part of the hearing would be done without sufficient input from the Respondent;
7. Presenting Counsel has not voiced any objection to the receipt of the Reply;
8. It is in the public interest to receive the Reply in all of the circumstances.
In the event that the Hearing Panel requires legal authorities to bring this request to fruition the Respondent is prepared to do this.
Ernest J. Guiste.
4 - May 27th, 2015 @ 4:37 PM
- Marilyn King to E.J. Guiste, Marie Henein etc.
The decision was finalized earlier today and prior to receipt of anything from your office.
Please read the decision, in particular, please note in particular paragraph 7 which states, “No reply will be accepted.”
I am not prepared to disregard the Panel’s decision.
5 – May 27th, 2015 @ 5:03 PM
- E.J. Guiste to Marlyn King, Marie Henein, Matthew Gourlay etc.
I would never ask you to disobey an order.
That is not the nature of my request.
Clearly, you received my communication
prior to you sending me the decision.
In the circumstances it would be quite proper
for you to put the matter before the panel for
Ernest J. Guiste.
6 - May 27th, 2015 @ 5:19 PM
- Marilyn King to E.J. Guiste, Marie Henein, etc.
I would respectfully urge you to read the decision.
I reiterate that the decision of the Panel was finalized before we received anything from you. I am not prepared to disregard an order of the Hearing Panel which states: “No reply will be accepted.”
I would respectfully ask that you refrain from further requests that I disregard that order.
Hearing Panel’s Decision
Denying the Respondent
the Right to Reply:
Justices of the Peace Review Council
IN THE MATTER OF A HEARING UNDER SECTION 11.1 OF THE JUSTICES OF THE PEACE ACT, R.S.O. 1990, c. J.4,
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
Requests after the Deadline for Submissions on the Compensation Request
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 Mr. Errol Massiah
Mr. James Morton Morton Karrass LLP
Counsel for the Association of Justices of the Peace of Ontario (Intervenor)
On June 11, 2014, this Panel made an order that the names of all witnesses who appear in any of the facta or motion materials or application records in this hearing shall not be published, nor shall any information that might identify them be published. Names of witnesses have been redacted.
Requests after the Deadline for Submissions on the Compensation Request
1. On April 28, 2015, this Hearing Panel made the following orders: Co-counsel Mr. Guiste and Mr. House had until May 15, 2015, just over two weeks, to file a Statement of Account and any submissions in writing in respect of the request for compensation made by Mr. Massiah. Presenting Counsel was given until May 22, 2015 to provide the Panel with any written response to the issue of compensation. The Panel stated that it would provide written reasons in relation to the request for compensation in due course, once we've had an opportunity to consider the submissions and the Statements of Account from Mr. Guiste and Mr. House.
2. On May 14, 2015, Mr Guiste, co- counsel for Mr. Massiah, requested an extension of time until May 19, 2015 to file the submissions. That request for an extension was granted by the Panel. The time for Presenting Counsel to file submissions was extended accordingly to May 26, 2015.
3. On May 19, 2015 submissions were filed by Mr. Guiste and Mr. House, co-counsel for Mr. Massiah. Subsequently, Mr. Guiste filed various pieces of correspondence on different dates, including two letters, a more particularized Bill of Costs, a copy of an email exchange with a translator, another copy of an email, a page that appears to be a revised page of his submissions, and additional case law. There was no indication of the relevance of the case law.
4. Presenting Counsel filed written submissions on May 25, 2015.
5. Mr. Massiah was already granted an extension of time to file submission on his request for compensation. The process must have an end date and reach a point of finality. We are not accepting the additional materials that were filed late except for the more detailed Bill of Costs that Mr. Guiste undertook to Mr. Gourlay, Presenting Counsel, to provide in order to facilitate adjudication of the compensation issue by the Hearing Panel.
6. There are no persuasive submissions that warrant this Panel ordering that the public should pay for the cost of translating case law. The Panel notes that one of the two cases enclosed with the request is not referenced in the written submissions. The other case that was enclosed is in English.
7. The Panel will not entertain a reply to Presenting Counsel's submissions on compensation. On April 23, 2015, the dates and processes of making submissions on compensation were set. No request for filing a reply was made then. No authority was provided in support of a request to make a further reply on the request for a recommendation for compensation. No reply will be accepted.
Date: May 27, 2015
Hearing Panel: The Honourable Deborah K. Livingstone, Chair
His Worship Michael Cuthbertson
Ms. Leonore Foster, Community Member
The Reply “Not Accepted”
prior to Hearing Panel
seeing and considering
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
REPLY SUBMISSIONS ON INDEMNIFICATION
Trial & Appellate Advocacy
245 Yorkland Blvd., Suite 302
Ernest J. Guiste
(416) 364-0973 fax
Barrister & Solicitor
31 Prince Arthur Avenue
(416) 960-5456 fax
Co-counsel for HW Massiah
1. The following points raised by Presenting Counsel(PC) invite a reply from the Respondent:
1. Defence provided by E.J. Guiste not well grounded, frivoulous and vexatious;
2. PC is unaware of any ‘constitutional tradition” that the AG
is responsible for indemnifying judicial officers for the cost
of their legal defence in judicial misconduct proceedings in
circumstances where there has been a finding of judicial misconduct;
3 Suggestion by PC that the test for compensation is grounded
in what a reasonable member of the public would consider
4. Quantum of costs staggering and unreasonable. This was a
seven day hearing
2. A hearing shall be commenced by a Notice of Hearing
in accordance with this Part.
Procedures Document s. 6(1)
3. Presenting counsel shall prepare the Notice of Hearing
(1) The Notice of Hearing shall contain,
(a) particulars of the allegations against the Respondent.
Procedures Document s.7
Hearing Issues Defined
by Notice of Hearing
and not the Respondent
3. The legal issues which were the subject of the within hearing arise directly from the Notice of Hearing(NOH) prepared by Presenting Council. On its face, the NOH raises the following legal issues:
1. Respondent violated the Ontario Human Rights Code (The Code);
2. Respondent created a “poisoned work environment”;
3. Respondents comments were “unwelcomed and vexatious”;
4. Respondent leered and oogled defendants who appeared
before him in legal proceedings; and
5. Respondent has a prior record of misconduct and has displayed a pattern of conduct.
4. The Hunt Report which the Hearing Panel has found constituted the “complaint in writing” makes no mention of the Code or items 1, 2, 3, and 5 above.
5. The Investigators’ Report is the document submitted to the
Complaints Committee by the investigators, Mr. Lindsay and
Mr. Davis, who were retained on behalf of the Complaints
Committee pursuant to section 8(15) of the Act to asssit in its
investigation. This Report contained new allegations which
became known to the Complaints Committee as a result of
the witness interviews conducted by the investigators in 2012
during the Committee’s investigation of the Hunt Report
Decision of Jurisdiction and Abuse of Process
at para 11
6. The evidentiary record before the Hearing Panel is clear that the Hunt Report, Investigator’s Report, the Complaints Committee’s letter dated January 2nd, 2013 and the testimony of the 13 witnesses called by the Presenting Counsel did not assert any violation of the Human Rights Code by the Respondent.
Investigators’ Report (five volumes)
Transcripts July 15, 16, 17 and 18th, 2014
NOH, Hunt Report and
generated a bona fide
questions on jurisdiction
and abuse of process:
7. Accordingly, notwithstanding the Hearing Panel’s finding that the Hunt Report satisfied the in-writing requirement of the Act the fact that the Complaints Committee discovered new allegations during their investigation of it raised a serious enough legal question that AJPO took an interest in the issue and supported the Respondent and the Hearing Panel properly sought legal advice on the question. Clearly, it can not reasonably be said that this was a run-of-the-mill case or that the Respondent was required to overlook this irregularity as a pre-condition to support his claim for indemnification from the Attorney General. This is what PC’s position amounts to.
Procedure for Adjudication
properly decided by Hearing
Panel and not Respondent:
8. The hearing commenced on July 4th, 2013. The Respondent properly served and filed a Motion Record, factum and Book of Authorities in support of his motion. Presenting Counsel responded in like fashion. The factums filed by both parties reveal that they were open to the idea of commencing the hearing and allowing for the consideration of the jurisdiction and abuse of the process to be adjudicated at the end of the evidence proper or for allowance to call further evidence in support of the motions.
9. Presenting Counsel noted in their written submissions that the Hearing Panel could well have decided the two issues it noted in their decision on the motions as stand-alone legal issues in 2013. Clearly, it was within the purview of the Hearing Panel to do that.
Panel permits expanded
10. Indeed, after hearing submissions from the parties on the issue the Hearing Panel ordered a blended hearing in June, 2014 and specifically allowed grounds 1, 3, and 6(3) on the motions to be adjudicated on a full evidentiary record. In addition, the Hearing Panel expanded the grounds at para 76 of their Reasons on the motions, including, among other grounds, (e) memories have faded due to delay.
11. The Hearing Panel must not overlook the fact that Foulds was decided in a manner that is contrary to the Procedures of the Justices of the Peace Review Council and fairness. In Foulds the issues of liability, disposition and compensation are all rolled into one decision. The discussion on “costs’ in these circumstances can hardly be characterized as a judicious and binding pronouncement on the issue of compensation under the Act. The decision reveals no submissions made by the parties to the Hearing Panel on the issue of compensation. As a result, as well intentioned at it may be the entire discussion is nothing but obiter dicta.
12. If anything legally relevant can be gleaned from Foulds on the issue of compensation it is their citing of one legal authority, namely, Reilly v. Alberta, 1999 ABQB 252. The following is a proper and relevant point of law for the Hearing Panel’s consideration:
Where the conduct in question related to the judicial
function...the state should defray the legal fees required
for the judge to defend himself or herself in order to
preserve the independence of the judiciary.
Oogling and leering count
related to judicial function:
13. Contrary to PC’s submission, based on the authority of Reilly supra this is precisely the type of case in which compensation is proper. This is an allegation which by its very nature has grave potential to interfere with judicial independence and invites a strong defence.
The Hearing Panel must recall the evidence of NN who said that it was so suttle that members of the public would not notice it and that at the time there was no intention by anyone to move forward with a complaint and in fact she would never bring such a complaint because, “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.”
(at p.141 – July 18, 2014)
Legal Authority for
14. Although Presenting Counsel advocates strong resistance to the well recognized constitutionally-based practice of the Attorney General indemnifying judicial officers in the context of having to defend judicial misconduct complaints brought against them they point to no law other than the recent decisions of the JPRC and the OJC. It is respectfully submitted that these decisions are neither binding or persuasive on the topic and are more of a manifestation of the growing politicization of the issue of governmental fiscal restraint than anything else.(see below)
Quebec Court of Appeal
and Superior Court have
addressed the issue squarely:
15. Two sound decisions from the Quebec Court of Appeal and the Quebec Superior Court address the issue of indemnification of judicial officers by the Attorney General for the cost of
defending themselves in judicial misconduct proceedings – as we have here.
16.  In Hamann, relying, inter alia, on the Supreme Court of Canada decision in Valente v. The Queen et al  2 S.C.R. 673, the Quebec Court of Appeal ruled as follows at paragraphs 12-15 of its reasons:
[TRANSLATION] The appellant argues that the Minister of Justice’s refusal to bear the respondent’s counsel fees does not infringe the principle of judicial independence since it does not affect the three essential components of that concept, security of tenure and financial security of the judges and institutional and administrative autonomy. The Court, like the trial judge, is of the contrary opinion. The Supreme Court, in Valente v. The Queen, clearly states that the rule of security of tenure means:
“that the judge be removable only for cause, and that cause be subject to
independent review and determination by a process at which the judge
affected is afforded a full opportunity to be heard.”
The court is of the opinion that the right to be heard necessarily includes the right to be assisted by counsel.
In the case at bar, it is obvious that dismissal is a possible ultimate punishment for the actions charged against the respondent who, moreover, like any other person, had the benefit of innocence at the time the complaints were laid. The principle of security of tenure is therefore directly at issue in this case, as is the concept of the respondent’s financial security, in his capacity as a judge, since the out-of-court fees he may incur would in all likelihood exceed his income as a part-time municipal judge, a situation that is peculiar to this case.
Incidentally, in this case the Court is also of the opinion that it woud be unreasonable, pursuant to these concepts, that a judge could be obligated to defend himself at his own expense against an unscreened complaint in the nature of the one made by the Club juridique.
 In Fortin, Lemelin J of the Superior Court of Quebec, at paragraph 31-33 of his reasons, expressed full agreement with the Court of Appeal in Hamann:
[TRANSLATION] Viewed from this standpoint, the once that should be adopted, in the Court’s opinion, the Court sees no valid reason to suppress or reduce the objective constitutional gurantees of Judge Fortin. He continues to have the right to defend his office without having his judicial independence compromised. If he had to bear the costs of his defence, there is a risk that he could not do so for financial reasons or that he would choose to resign. His independence would then have been compromised by the Minister’s refusal to pay the fees of his counsel.
No one should be able easily or conveniently to obtain the dismissal or sanction of a judge. That is the very essence of the security of tenure of the judge’s position. For that reason, the judicial system must provide Judge Fortin with reasonable resources to defend his position, not so much in his own interest but in order to avoid infringement of the security of tenure of the position.
Bourbonnais v. A.G. Canada 2006 FCA 62
(Fortin and Hamann as quoted from)
17. The legal principles articulated by both the Quebec Court of Appeal and the Quebec Superior Court are supported by the Federal Court of Appeal in Bourbonnais in the following words:
There can be no doubt, as the Quebec Court of Appeal and
Superior Court found, that the principle of judicial independence
requires, in the context of a judge’s dismissal proceeding, that
the judge be entitled to the payment of his out-of-court fees he
will have to incur in defending himself.
18. “The argument of public policy leads you from sound law,
and is never argued but when all other points fail.
Burrough J. , Richardson v. Mellish (18240
2 Bing 252
19. PC argues that in adjudicating the question of compensation the Hearing Panel should be guided by the question - would a reasonable member of the public consider it just for the respondent’s legal bill to be paid by the “public” ?
20. IT IS RESPECTFULLY SUBMITTED THAT this manner of characterization of the issue totally misses the point on the underlying rationale for compensation. The error in this thinking is grounded in denying the reality that justices of the peace, as judges, are fully entitled to the constitutional privilege of judicial independence and that the financial security component of judicial independence is clearly challenged by the need to defend one’s office. The following is a list the reasons why PC’s test is neither helpful or persuasive:
1. The complaint process is indeed a term and condition of office
in a free and democratic society;
2. Theoretically, a sitting judge or justice of the peace could be
the target of an allegation of leering or oogling at anytime from
anyone appearing before them;
3. Judicial independence is prima facie compromised if the subject
judge or justice of the peace is circumscribed in the manner and
extent of their defence of the complaint;
4. Both the Respondent’s security of tenure and financial security as
a judicial officer were at issue in these proceedings;
5. The Applicant earns roughly $122,000 per year and based on the
costs associated with the first hearing could not reasonably
afford to defend his office without indemnification from the
Attorney General. He was in fact indemnified by the
Attorney General as the records at tab 10 show.
6. “No one should be able easily or conveniently to obtain the
dismissal or sanction of a judge. That is the very essence of
the security of tenure of the judge’s position. For that reason,
the judicial system must provide Judge Fortin with reasonable
resources to defend his position, not so much in his own
interest but in order to avoid an infringement of the security
of tenure of the position”. (Fortin v. Ministre de la justice)
7. Re Foulds was in essence a guilty plea.
8. Re Johnson was in essence a guilty plea.
9. Re Chisvin was in essence a guilty plea.
10. Re Phillips was not a guilty plea but involved a judicial officer who was found after a hearing to have obstructing the investigation of a police officer in the course of a lawful investigation.
11. Caution must be headed so as not to create the appearance
or suggestion that defending allegations of misconduct is
somehow inconsistent with the public interest and that
administrative frugality trumps the Rule of Law and
judicial independence and security.
21. If the test for compensation advocated by PC has any merit or utility in the proper adjudication of the compensation issue under s.11.1(17) of the Act it is extremely limited and reserved to circumstances where the judicial officers pleads guilty or is found to have committed what amounts to a crime of moral turpitude – lying to a police officer in the execution of their duty.
22. Clearly, we do not have a situation remotely close to the situations in the cases relied upon by PC.
23. IT IS RESPECTFULLY SUBMITTED THAT for the Hearing Panel to accept Presenting Counsel’s submissions on indemnification for the Respondent in this case and in all of the circumstances of this case is for the Hearing Panel to disregard established legal principles in Canada and England recognizing the practice of the Attorney General (not the public)indemnifying judicial officers for the cost of their defence in judicial misconduct proceedings, to interfere with the Respondent’s right to counsel of his choice and plain and simply unfair and unprecedented.
24. The Respondent repeats and relies upon his prior statements on this point. At the end of the day the time spent on this motion was minor in the context of the entire proceedings.
25. The publication ban motion was well founded and based on the fact that to the extent that the complaint was not one that the Hearing Panel could in law entertain the publication of it while their legality was under consideration was prejudicial to the Respondent and indeed the administration of justice. Clearly, this motion did not take much time to prepare and adjudicate.
26. On the Gover matter counsel indicated that he would study the matter and if the law provided for such a motion it would be brought but if it didn’t it would be left alone. This was a fair position for counsel to take.
27. The witness statement summaries contemplated were follow-up interview material and this was a proper request to make. Other relief was sought and the Hearing Panel denied the relief. This in and of itself does not make the bringing of such a motion frivolous and vexatious. Disclosure motions are lost every day by very able counsel.
The record is clear. PC made an undertaking to Mr. Bhattacharya to provide him with a list of witnesses by June 14 2013. (Respondent’s Disclosure Request Documents – Nov.13, 2013 letter to PC) A witness list was provided in April, 2014. Contact information for A and B was provided after the hearing commenced.
27. Counsel for the Respondent brought two motions seeking leave to raise issues inadvertently omitted in previous argument after the Hearing Panel reserved on judgment. Based on proper legal authority holding that a court or tribunal is not functus until they render a final decision leave was sought.
The record is clear counsel received no notice with respect to the abuse of process order made mention of by PC at para 39 (vi) and (vii). Accordingly, counsel was not heard on this issue and has lost any opportunity to respond on it.
28. Breakdown of time expended by E.J. Guiste
Attendances – 23 days: July 4, 24, November 4, 19, 2013, April 9th, 2014, April 28, May 27, 28, 29, 2014, June 11, 12, 18, July 15, 16, 17, 18, 28, 29, 30, October 8th, Dec. 2nd, March 23, 2015, April 28th, 2015
Pre-Hearing: 385.15 hrs - from June, 2013 to July 14th, 2014
Hearing proper: 38.5 hrs. (evidence only July 15, 16, 17, 18, 28, 29, 30)
Written subs etc.: 296 hrs
29. It is clear that a significant amount of time was spent on what can be characterized as pre-hearing issues. The question is – is it proper to fault the Respondent or his counsel for this in all of the circumstances and, where as here, the Hearing Panel specifically invited the parties to address the question of their own jurisdiction to entertain the motion. Justice Livingstone said, “So we thought we’d throw that out to you today knowing its going to take some work.” Accordingly, the pre-hearing work is fully compensable as the bulk of this work was invited by the Hearing Panel to assist it.
30. The hearing and written submission preparation is also fully compensable under the authority of Blackburn, Romain, Obakata, Sinai, Quon, Kowarsky, Massiah, Ruffo, Fortin, Hamann and Reilly.
Massiah I – 4 days – no motions from parties of Hearing Panel – Attorney General paid aprox
Kowarsky – no viva voce evidence – guilty plea – benefit of Pre-Hearing Conference
Massiah II had six times more attendances than Massiah I. Massiah II involved serious questions of law raised by the Respondent, Association of Justices of the Peace of Ontario and the Hearing Panel itself. It is understandable that the costs associated with Massiah II would be roughly six times that of Massiah I. This is precisely why a Pre-Hearing Conference was requested. The purpose of the Pre-Hearing Conference as the Procedures Document clearly states is to promote settlement. Massiah II alleged a prior record of discipline thus increasing the jeapordy faced by the Respondent. All of these factors made this a challenging case and one where public confidence in the Administration of Justice and the Rule of Law is enhanced by compensating the Respondent.
31. All of which is respectfully submitted.
May 27th, 2015.
E.J. GUISTE & J. House, Co-counsel for the Respondent