Monday, June 22, 2015

Parts of Panel's Compensation Decision Mirrors Presenting Counsel's Reply on Disposition and Compensation ?

JUSTICES OF THE PEACE REVIEW COUNCIL

IN THE MATTER OF a complaint respecting

Justice of the Peace Errol Massiah

Justice of the Peace in the Central East Region

  


REPLY SUBMISSIONS OF PRESENTING COUNSEL ON DISPOSITION


  
Marie Henein and Matthew Gourlay
HENEIN HUTCHISON LLP

235 King Street East
3rd Floor Toronto, Ontario M5A 1J9

Tel.:   (416) 368-5000
Fax:   (416) 368-6640



JUSTICES  OF THE PEACE  REVIEW COUNCIL

IN THE MATTER OF a complaint respecting Justice of the Peace Errol Massiah
A Justice of the Peace in the Central West Region





REPLY  SUBMISSIONS  OF PRESENTING  COUNSEL  ON DISPOSITION


1.            Presenting Counsel offers these brief submissions in response to His Worship' s submissions on disposition dated March 2, 2015.

His Worship's  Conduct  of this Proceeding

2.             At para. 50, His Worship states that he has difficulty responding to Presenting Counsel's submission on this point because "particulars are not given." To clarify, Presenting Counsel's submission was meant to refer to the succession of frivolous motions brought over the course of this proceeding, which His Worship either knew or ought to have known had no tenable basis in law or fact. In particular, this course of conduct included the following:

(i)        His Worship's counsel, Mr. Guiste, brought a belated motion for a publication ban which required an adjournment of the hearing. It was based on His Worship's dissatisfaction with certain media articles which had already been published, and about which the Panel had no ability to do anything. In the same motion, he sought both a publication ban and an order that the media publish articles that were fair. In other words, His Worship sought relief that was factually and legally impossible to grant. This motion also involved a baseless allegation that various agents of the Attorney General, as well as Presenting Counsel, were "actively pursuing the removal or reputational destruction of His Worship as a justice of the peace." The Panel also noted that "Mr. Guiste's position that Presenting Counsel have been or are engaged in an attempt to undermine the judicial independence of His Worship illustrates a misunderstanding of the role of Presenting Counsel." This was only one of many allegations made over the course of this hearing against Presenting Counsel, the Panel, the Registrar, and even the court reporter. Decision on the Motion to Ban Publication, April 11, 2014.
  
(ii)        His Warship's counsel, Mr. Guiste, brought a motion for  recusal  of  the  Hearing Panel on account of a reasonable apprehension of bias. The motion was entirely baseless, and was justifiably characterized as "frivolous" in the Panel's  decision. The Panel also observed that His Warship's motion contained assertions that were "completely offensive," "egregious," and "atrocious," such as the absurd allegation that Presenting Counsel had somehow colluded with  the  Hearing  Panel  over  the issue of retaining independent counsel: Decision  on  the  Motion  Alleging  Bias, May 29, 2014.

(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 of the Panel on the Motion Alleging Bias May 29, 2014.

(iv)         Following release of the Divisional Court's decision on  the judicial  review  of the prior Hearing Panel's findings, His Worship persisted in trying to re-litigate (under the auspices of the abuse of process motion) a number of issues conclusively determined by the Divisional Court: Decision on Grounds to be Argued on the Motion Alleging Abuse of Process, June 19, 2014.

(v)        Mr. Guiste served and filed at least three Notices of Motion seeking disclosure and particulars, in respect of material that was either irrelevant or already in his possession. For instance, he complained that the witness contact information he had been provided was insufficient, but then acknowledged in submissions that he "had to date made no effort to speak with the witnesses." He also demanded witness statement summaries even though he was already in possession of verbatim transcripts: Decision on the Motion for Disclosure and Particulars, June 12, 2014.

(vi)         On November 10, 2014, after the Panel had taken the matter  under  reserve, Mr. Guiste filed a Motion for Directions re Evidence making irrelevant and belated claims about evidence led before the Panel  months  earlier.  In  dismissing  the Motion, the Hearing Panel made an order "to control and prevent any further abuse of this process" that Mr. Guiste cease trying to re-open the hearing and stop sending unsolicited correspondence to the Panel: Decision on the Applicant's Motion for Directions, November 18, 2014.

(vii)          In this same period of time post-hearing, Mr. Guiste filed a  Motion  attempting  to once again argue the jurisdictional points raised by the earlier motion, which remained under reserve. He also raised some new jurisdictional arguments  which the Panel characterized as "frivolous and meritless." The Panel went on to note that "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." The return date originally scheduled for delivery of the Panel's decision had to be adjourned as a result of the time lost dealing with His Worship's improper attempts to re-argue the case: Decision on His Worship's Motion for Leave to Have the Hearing Panel Entertain Further Submissions, November  19, 2014.




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 REQUEST FOR A RECOMMENDATION FOR COMPENSATION OF LEGAL COSTS


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 Mr. Errol Massiah




1.            We reject Mr. Massiah’s assertion that, in relation to numerous pre- hearing motions, his defence was “clearly well-grounded on recognized and viable procedural grounds”. We agree with and reiterate below examples included in Presenting Counsel’s submissions which highlight a number of the frivolous motions brought by Mr. Guiste on behalf of his client:

(i)        The Applicant’s counsel, Mr. Guiste, brought a belated motion for a publication ban which required an adjournment of the hearing. It was based on the Applicant’s dissatisfaction with certain media articles which had already been published, and about which the Panel had no ability to do anything. In the same motion, he sought both a publication ban and an order that the media publish articles that were fair. In other words, the Applicant sought relief that was factually and legally impossible to grant.  This motion also involved a baseless allegation that various agents of the Attorney General, as well as Presenting Counsel, were actively pursuing the removal or reputational destruction of Mr. Massiah as a justice of the peace. The Panel noted that Mr. Guistes position that Presenting Counsel have been or are engaged in an attempt to undermine the judicial independence of His Worship illustrated a misunderstanding of the role of Presenting Counsel.This was only one of the many allegations made over the course of this hearing against Presenting Counsel, the Panel, the Registrar, and even the court reporter. Decision on the Motion to  Ban  Publication (JPRC, April 11, 2014).

(ii)      The Applicant’s counsel, Mr. Guiste, brought a motion for recusal of the Hearing Panel on account of a reasonable apprehension of bias. The motion was entirely baseless, and was justifiably characterized as “frivolous” in the Panel’s decision. The Panel also observed that the Applicant’s motion contained assertions that were “completely offensive”, “egregious”, and “atrocious”, such as the absurd allegation that Presenting Counsel had somehow colluded with the Hearing Panel over the issue of retaining independent counsel: Decision on the Motion Alleging Bias (JPRC, May 29, 2014).

(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).

(iv)     Following release of the Divisional Court’s decision dismissing the application for judicial review of the prior  Hearing  Panel’s findings, the Applicant persisted in trying to re-litigate (under the auspices of the abuse of process motion) a number of issues conclusively determined by the Divisional Court: Decision on Grounds to be Argued on the Motion Alleging Abuse of Process (JPRC, June 19, 2014).

(v)      Mr. Guiste served and filed at least three Notices of Motion seeking disclosure and particulars, in respect of material that was either irrelevant or already in his possession. For instance, he complained that the witness contact information he had been provided was insufficient, but then acknowledged in submissions that he “had to date made no effort to speak with the witnesses.” He also demanded witness statement summaries even though he was already in possession of verbatim transcripts: Decision on the Motion for Disclosure and Particulars (JPRC, June 12, 2014).

(vi)     On November 10, 2014, after the Panel had taken the matter under reserve, Mr. Guiste filed a Motion for Directions re Evidence making irrelevant and belated claims about evidence led before the Panel months earlier. In dismissing the Motion, the Hearing Panel made an order “to control and prevent any further abuse of this process” that Mr. Guiste cease trying to re-open the hearing and stop sending unsolicited correspondence to the Panel: Decision on the Applicant’s Motion for Directions (JPRC, November 18, 2014).

(vii)    In this same period of time post-hearing, Mr. Guiste filed a Motion attempting to once again argue the jurisdictional points raised by the earlier motion, which remained under reserve. He also raised some new jurisdictional arguments, which the Panel characterized as “frivolous and meritless”. The Panel went on to note “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.” The return date originally scheduled for delivery of the Panel’s decision had to be adjourned as a result of the time lost dealing with the Applicant’s improper attempts to reargue the case: Decision on His Worship’s Motion for Leave to Have the Hearing Panel Entertain Further Submissions (JPRC, November 19, 2014).



JUSTICES OF THE PEACE REVIEW COUNCIL


IN THE MATTER OF a complaint respecting Justice of the Peace Errol Massiah
A Justice of the Peace in the Central West Region





                 SUBMISSIONS OF PRESENTING COUNSEL ON REQUEST FOR COMPENSATION PURSUANT TO SECTION 11.1(17)




a)  Conduct of the defence


1.             The Applicant has submitted that his defence was “clearly well grounded on recognized and viable procedural and substantive grounds” and was not frivolous or vexatious (para. 28). In respect of the lengthy pre-hearing motions, Presenting Counsel respectfully disagrees.

2.             Presenting Counsel submits that the Applicant advanced a succession of frivolous motions which the Applicant either knew or ought to have known had no tenable basis in law or fact. In particular, this course of conduct included the following:

(i)        The Applicant’s counsel, Mr. Guiste, brought a belated motion for a publication ban which required an adjournment of the hearing. It was based on the Applicant’s dissatisfaction with certain media articles which had already been published, and about which the Panel had no ability to do anything. In the same motion, he sought both a publication ban and an order that the media publish articles that were fair. In other words, the Applicant sought relief that was factually and legally  impossible to grant. This motion also involved a baseless allegation that various agents of the Attorney General, as well as Presenting Counsel, were “actively pursuing the removal or reputational destruction of His Worship as a justice of the peace.” The Panel also noted that “Mr. Guiste’s position that Presenting Counsel have been or are engaged in an attempt to undermine the judicial independence of His Worship illustrates a misunderstanding of the role of Presenting Counsel.” This was only one of many allegations made over the course of this hearing against Presenting Counsel, the Panel, the Registrar, and even the court reporter. Decision on the Motion to Ban Publication, April 11, 2014.



(ii)         The Applicant’s counsel, Mr. Guiste, brought a motion for recusal of the Hearing Panel on account of a reasonable apprehension of bias. The motion was entirely baseless, and was justifiably characterized as “frivolous” in the Panel’s decision. The Panel also observed that the Applicant’s motion contained assertions that were “completely offensive,” “egregious,” and “atrocious,” such as the absurd allegation that Presenting Counsel had somehow colluded with the Hearing Panel over the issue of retaining independent counsel: Decision on the Motion Alleging Bias, May 29, 2014.

(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 of the Panel on the Motion Alleging Bias May 29, 2014.

(iv)         Following release of the Divisional Court’s decision on the judicial review of the prior Hearing Panel’s findings, the Applicant persisted in trying to re-litigate (under the auspices of the abuse of process motion) a number of issues conclusively determined by the Divisional Court: Decision on Grounds to be Argued on the Motion Alleging Abuse of Process, June 19, 2014.

(v)        Mr. Guiste served and filed at least three Notices of Motion seeking disclosure and particulars, in respect of material that was either irrelevant or already in his possession. For instance, he complained that the witness contact information he had been provided was insufficient, but then acknowledged in submissions that he “had to date made no effort to speak with the witnesses.” He also demanded witness statement summaries even though he was already in possession of verbatim transcripts: Decision on the Motion for Disclosure and Particulars, June 12, 2014.

(vi)         On November 10, 2014, after the Panel had taken the matter under reserve, Mr. Guiste filed a Motion for Directions re Evidence making irrelevant and belated claims about evidence led before the Panel months earlier. In dismissing  the Motion, the Hearing Panel made an order “to control and prevent any further abuse of this process” that Mr. Guiste cease trying to re-open the hearing and stop sending unsolicited correspondence to the Panel: Decision on the Applicant’s Motion for Directions, November 18, 2014.

(vii)          this same period of time post-hearing, Mr. Guiste filed a Motion attempting to once again argue the jurisdictional points raised by the earlier motion, which remained under reserve. He also raised some new jurisdictional arguments which the Panel characterized as “frivolous and meritless.” The Panel went on to note that “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.” The return date originally scheduled for delivery of the Panel’s decision had to be adjourned as a result of the time lost dealing with the Applicant’s improper attempts to re-argue the case: Decision on His Worship’s Motion for Leave to Have the Hearing Panel Entertain Further Submissions, November 19, 2014.






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