Monday, June 22, 2015

Legal Authorities Relied Upon by HW Massiah on Compensation - Check Against Panel Decision

7.         It is settled law that a Justice of the Peace is a judicial officer entitled to the full rights of judicial independence.  This reality is confirmed by s.20 of the Justices of the Peace Act which affords them the same immunity from liability as a judge of the Superior Court of Justice.

                                                Ell    v.  Alberta 2003 S.C.C. 35 at para 24
                                                Justices of the Peace Act, s.209

8.         Accordingly, it is simply wrong in law to suggest that the general costs provisions in civil litigation and or the regulated provisions apply to justices of the peace with respect to their indemnification for costs incurred in defending themselves in judicial misconduct under the Justices of the Peace Act.  One simply has to look at the multitude of cases where justices of the peace have consistently been indemnified for the costs associated with defending themselves – even where they are removed from office. 

                                                Re Blackburn 1994 (Hogan J.)
                                                Re Romain 2002 (Otter J.)
                                                Re Obakata 2003 (Mocha J.)
                                                Re Sinai 2008 (Carr J.)
                                                Re Quon 2007 (Di Filipis J.)
                                                Re Kowarsky 2012 ( Hawke J.)
                                                Re Massiah 2012 (Vailencourt J.)

9.         The following pronouncements by respected jurists make it abundantly clear that a finding of misconduct does not disqualify a justice of the peace from indemnification for the costs of defending judicial misconduct proceedings:

                         “Costs in the proceeding are not contingent on success”

                                                Otter J. In Re Romain 2002

                         “It should be noted that there is no provision in the statute
                        which ties a recommendation as to costs with a recommendation
                        for removal.”  

                                                Hogan J. In Re Blackburn 1994   

13.       Accordingly, Re Foulds 2013 has no binding or persuasive authority on the issue of compensation.  Firstly, at para 50 the panel equates the compensation issue for justices of the peace with the professional disciplinary process.  This is clearly wrong.  Justices of the Peace are neither employees or professional liscense holders.  They are part of the judiciary.  Secondly, the panel comments that the “awarding of costs” in judicial misconduct proceedings lacks consistency but fails to articulate this point with any authorities.  In fact,  judicial officers are consistently compensated for the cost of their defence in judicial misconduct proceedings and it is in rare circumstances that they are not.  It will be instructive to analyze those rare circumstances where they are not in adjudicating this aspect of the case.

                                                Reilly  v.  Wachowich 1999 ABQB 639 (Canli)
                                                Ruffo  v.  Quebec [1998] R.J.Q. 254
                                                Fortin  v.  Ministre de la justice Quebec 2002 Canlii 1160

Judicial Immunity:

17.       While some of the allegations did not go to the actual discharge of his judicial duties.  It is clear that counts 1,3 and 13 of the Notice of Hearing touched the discharge of his judicial duties to litigants before the Court and no such litigants were called to testify in support of this claim.  Section 20 of the JPA protects sitting justices of the peace from such attacks on the discharge of their judicial functions.

                                                s.20 of JPA – Judicial Immunity

24.       On the findings made against His Worship the Ontario Human Rights Code provides the following defences:

                                    1.         Jurisdiction – deferral to alternate forum – s.45;
                                    2.         Delay – s.34(1)(2)
                                    3.         Consent/Welcome/Not vexatious Defence

                                                CHRC   v.  Canadian Armed Forces et al 1999 Canlii 18902
                                                Anamguya  v.  Intercon Security 2011 HRTO 2186
                                                Szabo  v.  Regional Municaipality of Niagrara 2010 HRTO                                                 1083 Lavoie  v.  Calabogie Peaks et al 2012 HRTO 1237
                                                OHRC  V.  Howard 2004 HRTO 8

Right to Defend
One’s Self Fundamental:

26.       The right to defend one’s self is perhaps the most fundamental legal right in our system of justice.  So fundamental is this right that it is in fact incorporated in the Justices of the Peace Act in s.11.2(1) and (2).

27.       The following international conventions are further evidence of this important and fundamental right:

Universal Declaration of Human Rights, G.A. Res.271(III), UNGAOR, 3d Sess., supp. No. 13, UN. Doc. A/810 (1948) 71

Article 12.

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honur and reputation.  Everyone has the right to the protection of the law against such interference or attacks.

International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171

Article 17

1.   No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2.   Everyone has the right to the protection of the law against such interference or attacks.


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