Thursday, June 18, 2015

Some Evidence on paragraph 5 (1), (2), (4), (5) and (8) of the Hearing Panel's Addendum re Guiste Conduct

Excerpt of Notice of Application for 
Judicial Review issued October, 2013:

2.         The grounds for the application are:

 (1)      The Tribunal erred in law and jurisdiction and deprived the Applicant of     natural justice and fairness in the manner of the investigation and disposition of the allegations against him, in that

                        (a)       the Tribunal displayed a lack of institutional impartiality and                                    institutional independence from the Attorney General for                                              Ontario,  the Ministry of the Attorney General and their

                        (b)       the Tribunal failed to follow the Justice of the Peace Act
                                    (the Act), established legal principles and the Rule of Law;

                        ( c)       the Applicant’s rights under s.11(d) of the Charter were                                     violated; and                                                

                        (d)       the Applicant was denied adequate representation of                                    counsel and learned of this fact in and around July, 2013.   

(2)       Such further and other grounds as counsel may advance and this Honourable Court may permit.

Excerpt of Applicant's Factum
on Judicial Review Application
dated February, 2014:

1.         This judicial review application seeks the Superior Court’s supervisory jurisdiction over the Justices of the Peace Review Council’s receipt, investigation and ultimately adjudication of allegations of misconduct brought to their attention as a representative complaint on behalf of Ministry of the Attorney General staff by manager X for the Ministry of the Attorney General for Ontario on or about August 27th, 2010 and copied to the Deputy Attorney General, Mr. Murray Segal and Assistant Deputy Attorney General.  Judicial independence may be seriously compromised if the acts and omissions of the office of the Attorney General and his agents in this case are lawful in a free and democratic society which is governed by the Rule of Law.           

The application raises the following questions of law:

            (a)        Does a representative complaint from manager X
                        of the Ministry of the Attorney General which is copied to the Deputy
                        Attorney General and Assistant Deputy Attorney General – Court                                                           Operations - constitute a “complaint” as that term is used under
                        The Justices of the Peace Act, R.S.O. 1990 ?

Divisional Court 
Decision dated June 4th, 2014:

By Reasons for Judgment dated June 4th, 2014 the Divisional Court dismissed His Worship Massiah's application for judicial review for delay.  Nonetheless, the panel went on to find that the complaint in question was proper and appropriate.

Hearing Panel Decision
Dated June 6th, 2014:

[25]   We accept that the Hearing Panel has jurisdiction to consider the specific issue of the sufficiency of the "complaint" within the meaning of s.10.2 in assessing whether it has jurisdiction to conduct the hearing.

Excerpt from transcript of Nov.19th, 2013:

1                                  MR. GUISTE:  I would like an
2       opportunity for -- there was a point raised, and
3       Justice of the Peace Massiah wishes to address a
4       point that was raised by the Panel.
5                                    JUSTICE LIVINGSTONE:  Your Worship?
6                                    HIS WORSHIP MASSIAH:  Thank you.
7                                    JUSTICE LIVINGSTONE:  You're welcome.
8                                    HIS WORSHIP MASSIAH:  In reference to
9         the dismissal of counsel, Mr. Bhattacharya, I
10       wanted to clarify a point.   So my comments really 
11       has nothing to do with the discussion right now.
12       So that's why I was a little taken back when I was
13       asked.
14                                  JUSTICE LIVINGSTONE:  Then I don't
15       think, in fairness, that should be addressed at
16       this point.  I appreciate your advising us about
17       that.  If there's something you want to raise in
18       that regard there is another time and forum to do
19       that.
20                                  HIS WORSHIP MASSIAH:  Absolutely.  This

1       has nothing to do with regards to Ms. Blight
2       being --
3                                  JUSTICE LIVINGSTONE:  That's fine.
4       Thank you very much.
5                                  HIS WORSHIP MASSIAH:  I'm sorry, did I
6       misunderstand?  I'll have counsel clarify.
7                                  JUSTICE LIVINGSTONE:  Sure.
8                                  HIS WORSHIP MASSIAH:  Thank you.
9                                  JUSTICE LIVINGSTONE:  You're welcome.
10                                  MR. GUISTE:  Members of the Panel, I
11       sat here listening attentively to your questions,
12       and there was a suggestion that I found from the
13       nature of the questions that somehow I had made
14       decisions for Mr. Massiah that he didn't make for
15       himself.
16                                  And there was even a suggestion when,
17       Madam Chair, you said that it was even more cute
18       because Mr. Guiste said that Mr. Bhattacharya was
19       not acting, or was in a conflict that His Worship
20       said that a meeting was going to take place.   So I
21       believe that in fairness Mr. Massiah wants to
22       clarify that point, and I think that he should be
23       granted an opportunity to clarify that.   Because
24       it's left with the impression that somehow I was
25       acting outside of jurisdiction and I was acting

1       improperly, and I think that's a very serious
2       allegation.
3                                  JUSTICE LIVINGSTONE:  Mr. Guiste, in
4       fairness, the comments that were made on the last
5       date in respect of Mr. Bhattacharya's retainer or
6       non-retainer are on the record in the transcript.
7       That's what I was referring to when I said the
8       differences in what you stated and what he stated
9       were more acute than Ms. Henein described, but that
10       is not what we're addressing right now.   That may
11       be part of a response that you want to make when we
12       get to the motion for adjournment, if and when we
13       do.
14                                  Right now I want to know what your
15       position is on whether there's any issue from your
16       perspective on what Ms. Blight has disclosed just
17       now.
18                                  MR. GUISTE:  Here's my problem, Ms.
19       Blight sits on the discipline panel of the Law
20       Society of Upper Canada.   That is a self-governing
21       body that governs the conduct of lawyers.   The
22       Panel has squarely raised an issue where there was
23       an insinuation that I did something improper.   The
24       Panel, notwithstanding my representation that I was
25       counsel in speaking for the client, insisted to

1       speak with him and is now making an issue with
2       respect to the representations.
3                                  Mr. Massiah is here before you.   He
4       wishes to clarify the position.   And I cannot
5       understand why in law or good conscience any reason
6       why this Panel would not want to hear his
7       clarification.
8                                  JUSTICE LIVINGSTONE:  I haven't said
9       that we don't want to hear it, Mr. Guiste.   It's
10       just that at this juncture we're in a different
11       place.  We're addressing a different issue.   That's
12       what I'm suggesting we're doing.
13                                  MR. GUISTE:  But it's related to the
14       main issue, and I would ask for leave that we
15       address it now, get it out of the way and deal with
16       the other issue.  Because when it involves my
17       conduct then it calls into question my ability to
18       act fearlessly in the representation of my client.
19       So I think it's important that he clarify that.
20                                  JUSTICE LIVINGSTONE:  Your conduct
21       isn't an issue with this Panel, Mr. Guiste.   What
22       is at issue with this Panel, right now, is what has
23       been raised about Ms. Blight's involvement in the
24       subcommittee in relation to a previous different
25       complaint.

1                                  MR. GUISTE:  Will he be given an
2       opportunity today to address that point?
3                                  JUSTICE LIVINGSTONE:  I told you and
4       I've told him there will be a time and a forum for
5       him to make those submissions.   I can't tell you if
6       it's today or not.  All I can tell you is I would
7       like to hear your response to the issue that's

8       before us at the moment.

Later in the same transcript:

1                                    MR. GUISTE:  Yes.  I wanted to address
2         the issue of Justice Massiah and the conflict of
3         interest item.  I think it important that he be
4         given an opportunity to explain himself since the
5         Panel makes so much of an issue of it.
6                                    JUSTICE LIVINGSTONE:  Well, with great
7         respect, Mr. Guiste, I've answered that question to
8         you and to Justice of the Peace Massiah twice
9         already.  At this stage the application for recusal
10       is before us, and we presume we are not dealing
11       with the other motion until that is concluded.
12                                  I have told you and His Worship both
13       that his issue, your issue about any comments will
14       be addressed in the future, but at this point I'm
15       not prepared to deal with that.   It's off the

1       agenda until we conclude the application in
2       relation to recusal.
3                                  Anything else?
4                                  Thank you all very much.  And we will
5       see you in 2014.

6       ---Whereupon the proceedings adjourned at 1:38 p.m. 7

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