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.
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
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.
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
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
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
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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