Wednesday, June 17, 2015

Some Evidence on Paragraphs 24(iii) and 5(11) of Hearing Panel's Compensation Decision and Addendum Re Guiste Conduct

Decision on Compensation:

24(iii)  Mr. Guiste expressed a concern that Mr. Gover’s retainer as Independent Counsel to provide a legal opinion would in some way result in an unfair hearing. He stated: “It’s my duty to say look, this fellow has too close of a relationship to Presenting Counsel and to Mr. Hutchison and the Ministry of the Attorney General.” He indicated that it was a serious matter. He conceded that he had not checked the case law to see if it would support his allegation. A date was scheduled for motion materials to be filed. No motion was ever brought. Decision on Threshold Jurisdiction Question (JPRC, June 6, 2014).


5 (11)   The Panel heard on April 28, 2014, that Mr. Guiste had contacted Mr. Gover who was retained as independent counsel to give the Panel legal advice on particular questions of law. Mr. Guiste telephoned Mr. Gover and asked him if he saw anything wrong in accepting the retainer to advise the Panel.

Mr. Guiste also suggested that there was a concern about the objective propriety of Mr. Gover acting as independent counsel. Mr. Guiste indicated that it seemed to him “that too many of the players are too loosely aligned to each other and I think a reasonable third member person in the public, looking at this, being informed of all of the facts and circumstances, would say wait a minute, that doesn’t look very good.”

Later in the proceeding, he stated that he had not yet looked at the case law to support his allegation and “if at the end of the day it doesn’t pan out, I might withdraw it.” No motion was brought in that regard.

Excerpts from transcript of April 28th, 2014

At p.25 line 23

PRESENTING COUNSEL:   Madam Chair, may I address an issue because we had some discussion over the break ?


PRESENTING COUNSEL:   Mr. Guiste has indicated to me that he is content to deal with his motion regarding Mr. Gover in writing, to make submissions to you in writing and to allow me to respond in writing.  Of course subject to your discretion, but that would seem to be an efficient way to deal with this.

And he has indicated that he would be able to make any written submission he has and he's also said he'll review his position, he may not proceed with this, he wants to consider it further, but if he is going to proceed, he would provide submission in writing by May 5th and we would provide them the following week, so that you'll have that before you and can adjudicate that issue as well, so as not to delay the proceedings.

As I said, he's not committed to advancing it any further but he will consider his position, and if he chooses to do so, would do so by May 5th.

JUSTICE LIVINGSTONE:   All right, I hear what you're both saying.  the panel have discussed the issue and we are ad idem that Mr. Gover has been retained.  He's been retained by the Review Council in accordance with section 8(15) of the Act.

PRESENTING COUNSEL:  I think he has been retained.  That's not the issue.  The issue is that my friend may suggest, that he cannot act as independent legal counsel.

JUSTICE LIVINGSTONE:   I appreciate that.

PRESENTING COUNSEL:   I appreciate that he's been retained and he's proceeding to do work.  If my friend is proceeding with his argument that there is a concern about independence of independent legal counsel, then he will bring that application and is content to do it in writing and is content to abide by the timelines I have submitted to you.

If he chooses not to bring that application, that will be the end of it and will not be an issue for the panel to consider at all.  But what we are trying to do is avoid any further delay in this matter and just have it proceed expeditiously.  So that's the proposal we put to you..

JUSTICE LIVINGSTONE:  All right.  Thank you.

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