Wednesday, June 24, 2015

Some Evidence on Prejudicial Conduct Allegation at para 123 of Panel's Decision on Jurisdiction/Abuse of Process Motion

Decision on Jurisdiction
and Abuse of Process(Jan.12th, 2015)

[122]            We do not agree that His Worship’s change in or addition of counsel
       contributed significantly to delay in the process.

[123]     However, eight days were scheduled for witnesses to give 
           evidence during December of 2013. His Worship’s 
           decision to pursue an application of judicial review and 
           terminate the retainer of one of his two lawyers resulted 
           in the loss of those dates. The witnesses ultimately gave evidence 
            in July of 2014.

Transcript of proceedings
November 19th, 2013:

1                                  JUSTICE LIVINGSTONE:  Thank you very
2       much, Mr. Morton.
3                                  There is one question, Ms. Henein, I
4       think Ms. Blight would like to ask before we take a
5       break to allow His Worship and counsel to look at
6       the transcripts and then respond.
7                                  MS. BLIGHT:  Ms. Henein, when we -- I
8         can't remember which day it was.   When we were here
9         perhaps on July 24 the Panel asked the parties to
10       address a question in terms of this motion, and
11       that was whether we have the jurisdiction as a
12       hearing Panel appointed under section 11.1 I think
13       of the Act to consider the abuse of process motion.
14                                  JUSTICE LIVINGSTONE:  Just for the
15       record, it was on July 24th, page 75 of the
16       transcript of that day.  His Worship Cuthbertson
17       raised the issue, specific issue about jurisdiction
18       which he addressed to both of you actually, both of
19       you and Mr. Guiste.
20                                  MS. HENEIN:  That's right.  And I
21       assumed we would have been dealing with it in oral
22       submissions as to whether or not there's
23       jurisdiction.

1                                  MS. BLIGHT:  And was it your intention
2       to deal with that question as a preliminary matter?
3                                  MS. HENEIN:  I had anticipated dealing
4       with it, subject of course to the Panel's
5       direction, in the entirety of the motion.
6                                  JUSTICE LIVINGSTONE:  Today?
7                                  MS. HENEIN:  Yes.

1       It's now 10 to 11:00.  So we'll return 10 after
2       11:00.  Thank you.
3                                  --- Recess at 10:49 a.m.
4                                  --- On resuming at 11:24 a.m.
5                                  JUSTICE LIVINGSTONE:  Please be seated.
6                                  All right, Mr. Guiste, just before we
7       ask for your response on this motion, another issue
8       has arisen.  You commented about a complaint made
9       by the Registrar in relation to testimony of His
10       Worship.  That was something that this Panel, at
11       least His Worship and I had never heard of, and
12       we've discussed that, and we want to address an
13       issue about that now.
14                                  And I'll let Ms. Blight speak first.
15                                  MS. BLIGHT:  So Mr. Guiste described a
16       complaint filed by the Registrar against a justice
17       of the peace arising from testimony given at a
18       hearing held before a prior hearing panel.   I can
19       advise the parties that I sat as the lawyer member
20       of that complaints committee.
21                                  Until Mr. Guiste raised the issue this
22       morning I had not realized that I'd had any prior
23       involvement with His Worship.   The complaints
24       committee dismissed the complaint without
25       requesting that His Worship provide a response.   I

1       had simply not recalled who the justice of the
2       peace was who was the respondent in that matter.
3                                  JUSTICE LIVINGSTONE:  As a result of
4       Ms. Blight explaining to us what she now recalled
5       after you raised that complaint which we knew
6       nothing about, Mr. Guiste, we reviewed the
7       legislation, and section 11(4) seems to be the
8       appropriate section which sets out that -- well,
9       the conclusion is that Ms. Blight is not
10       disqualified from participating in this hearing
11       because section 11(4) sets out that the members of
12       a complaints committee who investigate a complaint
13       shall not participate in a hearing in respect of
14       the complaint.
15                                  That was our concern.  So that
16       complaint was dismissed.   This hearing is dealing
17       with a completely separate complaint.   So it seems
18       to us that that section is the applicable one.
19       Since the complaint was dismissed it would seem to
20       me that the first question is whether presenting
21       counsel has an issue with Ms. Blight continuing as
22       a member of this hearing Panel.   Does she?
23                                  MS. HENEIN:  I would actually like a
24       few moments to think about that and speak to Mr.
25       Guiste about it as well.

1                                  JUSTICE LIVINGSTONE:  All right.  I'll
2       let both of you consider.   We just thought it was
3       appropriate to raise it because this is a new issue
4       for all of us.  Thank you.
5                                  --- Recess at 11:27 a.m.
6                                  --- On resuming at 11:56 a.m.
7                                  THE REGISTRAR:  Please rise.
8                                  JUSTICE LIVINGSTONE:  Thank you.  You
9       may be seated.
10                                  MS. HENEIN:  If I can address you
11       first, with your permission.
12                                  JUSTICE LIVINGSTONE:  Please.
13                                  MS. HENEIN:  I was not aware of this
14       position.  I'm grateful that it was brought to our
15       attention.  I'm told by Mr. Guiste he was not aware
16       of Ms. Blight's involvement in the previous
17       consideration.
18                                  So over the break I had an opportunity
19       to review what the complaint was that was made.   I
20       don't know, because there is reference in the memo
21       to a number of documents that were provided
22       including transcript excerpts and letters.   I have
23       not seen those documents.   I would obviously like
24       to see them.
25                                  I have had the opportunity to review

1       also the comments or the dismissal of the
2       complaint.  I'm not going to file this in front of
3       you now, I will at some point, but concluding that
4       the complaint should be dismissed, and that there
5       was no intention by Justice of the Peace Massiah to
6       mislead the committee in his testimony.
7                                  So the conclusion was that a review of
8       the transcripts was that Justice of the Peace
9       Massiah did not respond in a misleading way, and
10       that indeed it was the nature of the questions that
11       were confusing, and that he clarified his answers
12       when those questions were clarified.
13                                  Having reviewed all of that it will be
14       my position that there is no basis for Ms. Blight
15       to recuse herself from this Panel, and I will make
16       those submissions and I'm happy to make them in
17       writing.
18                                  However, I think, in fairness, this has
19       just been brought to the attention of Mr. Guiste
20       and Justice of the Peace Massiah.   I can indicate
21       that if I were in his position I would want the
22       opportunity to review all those materials and to
23       make proper submissions before the Panel.
24                                  You appreciate how strongly I have been
25       opposed to the adjournment on the basis that the

1       abuse of process motion should have been going, but
2       things arise through no fault of anyone.   This has
3       arisen.  I hesitate to take an aggressive position
4       and push this matter forward without allowing you
5       the opportunity to have not only Mr. Guiste's
6       submissions but my submissions and the law on this
7       area, because my position will be no recusal is
8       appropriate, and I want to be able to give you the
9       law, because there is law on this.
10                                  I'm sure Mr. Guiste will make a
11       forceful argument for the other side.   I think that
12       to save at the end of the day three hours of time
13       and not give you the proper foundation to make the
14       decision, whatever that decision is, and for it to
15       be considered would be a greater disservice than
16       losing the hours that we've lost today.
17                                  So after much consideration it's my
18       view that what I expect will happen is Mr. Guiste
19       will be seeking an adjournment to make the
20       application for recusal, and I will be opposed to
21       that application, but I think that you should have
22       the benefit of reasons and thoughtful submissions
23       and law on this issue.
24                                  Subject to any questions, that is the
25       unfortunate situation we find ourselves in.   Thank

1       you.
2                                  JUSTICE LIVINGSTONE:  I don't have any
3       questions at this time.  Ms. Blight?  Your Worship?
4                                  HIS WORSHIP CUTHBERTSON:  None.  Thank
5       you.

1                                    JUSTICE LIVINGSTONE:  All right.
2                                    So let's recap.  So far we're all in
3         agreement that we're all available on -- I'll get
4         the days of the week as well so we're clear.
5         Wednesday the 9th of April.   Monday the 28th,
6         Tuesday the 29th and Wednesday the 30th of April.
7         Are we all at idem on that?
8                                    MS. HENEIN:  Yes.

Hearing reconvened on April 9th, 2014 at 10:00 a.m.

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