PART III – GROUNDS FOR FULL INDEMNIFICATION
Issues transcending the
parties
and in public interest:
15. The Respondent
urges the Hearing Panel to recommend full indemnification. This is especially true in circumstances –
where as here – the Respondent asserts novel and significant questions of
statutory interpretation touching on jurisdiction, abuse of process and
judicial independence which clearly transcend the parties and are in fact in
the public interest. The Respondent’s
litigation has provided answers to the following questions of statutory
interpretation and public importance:
1. Clarification on the in-writing
requirement in s.10.2;
2. Clarification on who can bring a
complaint;
3. Clarification on whether a Complaints
Committee, as distinct
from
the Review Council, can receive a complaint under the
JPA;
4. Clarification of a Hearing Panel’s
jurisdiction to consider acts or decisions of a
Complaints Committee;
5. Clarification on what is “unwelcome”
and “vexatious’ “sexual
harassment”
in the court setting;
6. Clarification of the elements of
compliance with natural justice and
fairness
in the investigation stage of JPA proceedings;
7. The application of Blenco to
proceedings under the JPA
Additional grounds for
Indemnification:
16. The Respondents
respectfully submits that in addition to the above – the following facts and circumstances
justify full indemnification for the costs incurred by this judicial officer in
defending himself.
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
Novel and Unprecedented
Case:
18. The case against
His Worship Massiah was novel and unprecedented. Never has a justice of the peace been
prosecuted for judicial misconduct founded on a violation of the Ontario Human
Rights Code with respect to not only his workplace interactions with
court-staff but in the manner of the discharge of his judicial duties with
litigants before the court based solely on the observations of court-staff in
the absence of any complaint from the impacted court-staff or any litigants
appearing before the court and in the absence of a clear policy in the Ontario
Court of Justice touching on interactions between judicial officers and court
staff.
19. The Region of
Durham, the employer of the subject employees, who has a duty under the Ontario
Human Rights Code and the Occupational Health and Safety Act to provide a
harassment-free workplace for its employees was not aware of any facts or
circumstances giving rise to a poisoned work environment created by the
Respondent.
Hearing Panel
Pronouncements:
5) This Hearing
Panel posed the question to both Presenting Counsel and Counsel for His Worship
as to whether we ( the Panel) have the jurisdiction to consider the actions of
the Complaints Committee. The Hearing
Panel determined that its jurisdiction in this regard must be determined prior
to the hearing of the abuse of process motion.
Oral argument on this narrow issue was heard on April 9th,
2014.
Decision on Threshold Jurisdiction
Questions (June 6th, 2014)
10) There appear to be no decisions from
judicial conduct hearings for justices of the peace where relief for
alleged irregularities in the complaints process were considered or granted.
(supra)
22) With respect to
the Panel’s second question concerning its authority to determine that validity
of a “complaint” under section 10.2 of the JPA, we rely on Sazant(supra), para
189. It resolved that competing
positions of Krop and Sutherland over a discipline committee’s authority to
review the investigatory stage which led to a hearing. If the “issues” went to the underlying
jurisdiction of the committee to proceed with a hearing” then a review of the investigatory
process is appropriate.
23) This is exactly
the circumstance this Hearing Panel is being asked to consider by His
Worship. It is whether former Presenting
Counsel, Mr. Hunt, could be considered a complainant and whether the materials
which he sent to the Review Council could constitute “a complaint”. A
“complaint” pursuant to 10.2 is an overriding requirement under the Act for the
establishment of a complaints committee.
Decision on Threshold Jurisdiction
Questions – June 6th, 2014
24) In our view,
Sazant provides the authority for the Hearing Panel to consider the
circumstances in the investigatory process as threshold issues. The Panel can consider whether the Complaints
Committee’s decisions or actions affect the exercise of a power of the Panel
concerning its own mandate. If the
investigatory process is found to have been appropriate, then the Panel has the
jurisdiction to conduct the hearing on its merits.
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 he hearing.
Decision on Threshold Jurisdiction
Questions – June 6th, 2014
27) In response to
the jurisdiction question raised by the Panel, in our view, both Presenting
Counsel and Counsel for His Worship also provided materials and/or oral
submission related to the abuse of process and fairness motion. As well, Mr. Gover also commented on abuse of
process and fairness issues in his legal opinion. Submissions
from all counsel on those issues have been instructive.
(supra)
20. “Secondly, I
agree that, based on what I now have heard about what likely remains to be
argued in relation to abuse of process, that there is merit in having the abuse
of process issue conclusively argued once all of the evidence has been heard.”
(June 18th, 2014 @ p.68 ln19)
21. “What we would
propose to do is have those reasons in by the 7th of July, when we
would normally have been proceeding; however, we will not rule on them until we
have heard evidence, so to allow, with caution, any potential further issues
about abuse of process to be canvassed after the evidence is in. So, its a Pyrrhic victory to some extent, Mr.
Guiste. I agree with you that we can adjourn the abuse of process
motion argument itself from today.”
(June 18th,
2014 @ p.69 ln 15)
Fair Admissions Made
Early in Process:
22. Early in the
investigation process His Worship Massiah clearly conceded that some of the
allegations brought against him were consistent with his manner of interacting
with staff prior to his first disposition and that he would not interact with
staff in that manner in the future. He
confirmed this position at the hearing too.
His Worship Massiah’s Written Response
Transcript of
Proceedings of July 29th, 2014
23. Prior to
embarking on a formal hearing His Worship sought unsuccessfully to avail
himself of a Pre-Hearing Conference pursuant to Rule 14 of the Procedures in
order to narrow the issues and attempt settlement.
23a At the outset,
the Respondent provided authority addressing the jurisdiction of the Hearing
Panel to address his motions. He stated
the following at para 25 of his initial factum dated July 11th,
2013:
25) IT IS
RESPECTFULLY SUBMITTED THAT although the enabling legislation does not
expressly provide this panel with this authority as it does the complaints
committee that such authority is vested in the panel by virtue of its right to
adjudicate questions going to its jurisdiction.
23b. Independent
Counsel retained by the Hearing Panel provided similar legal advice in May,
2014, ten months later.
25) ALTERNATIVELY,
IT IS RESPECTFULLY SUBMITTED THAT the (sic) after completing the hearing
the panel is entitled to dismiss the complaint(s) with or without a finding
that it is unfounded and a request is made for such an order – with the
understanding that should the decision on the motion be deferred that
the Applicant shall have the right to adduce further evidence in support
of the claims raised herein.
23c Indeed,
Presenting Counsel echoed the same point in their factum dated July 19th,
2013 in the following words:
34) In conclusion,
Presenting Counsel submits that the motion should be dismissed, without prejudice to renew it at
the end of the Hearing.
23d IT RESPECTFULLY
SUBMITTED THAT the record reveals that any suggestion that the Respondent
delayed these proceedings is not grounded in fact or the tribunal record. It would appear that the following unforeseen
events lengthened the hearing and made the proceedings unintentionally more
complex:
1. Hearing Panel’s questions and request
for assistance on
their
jurisdiction;
2. Ms. Blight’s late revelation that she
sat on a prior Complaints
Committee
involving the Respondent and voluntarily recusing
herself;
3. *Late, incomplete or non-disclosure of relevant
information by
Presenting
Counsel;
4. Hearing Panel’s decision to decide
their jurisdiction first – almost
a
year after the motion was raised in July, 2013 by the Respondent.
and arguable defences:
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
25. His Worship
exercised his right under the Human Rights Code and the Justices of the Peace
Act to contest those allegations leveled against him which he did not admit to
in his written response based on both the substantive and procedural defences
provided by those statutes along with s.23 of the Statutory Power Procedures
Act and the common law doctrine of abuse of process.
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.
His Worship Massiah’s
Defence:
28. It can not
reasonably be said that the Respondent’s defence was frivolous, vexation or
without merit. His defence was clearly
well grounded on recognized and viable procedural and substantive grounds which
were clearly acknowledged and welcomed by the Hearing Panel. The defence was
clear and consistent commencing in July, 2013.
Duty of Counsel
to defend:
29. Counsel has a
well recognized duty to defend his or her client. Given that a “complaint” provides the Hearing
Panel with both the jurisdiction to embark on a hearing and make a
recommendation for removal following a hearing under the JPA, counsel was duty
bound to advance the three motions advanced on behalf of the Respondent.
30. Under the
enabling legislation there are two statutory prerequisites to removal of a
justice of the peace which clearly recognize and speak to the right to defend
one’s self. Firstly, a complaint about the justice of the
peace has to have been made to the Review Council. Secondly, only after a hearing before a Hearing Panel which finds that the justice has
become incapacitated or disabled from the due execution of his or her office by reason of conduct that is
incompatible with the due execution of his or her office.
31. It is important
to appreciate that the first pre-condition speaks to a complaint being made to
the “Review Council” as distinct from the “Complaints Committee” as it is the
“Review Council which receives “complaints” under the s.10.2(1).
The motions advanced
by the Respondent:
Publication Ban:
32. This motion was
advanced on the basis that the issue of jurisdiction should be adjudicated
before the complaints can be publized.
Clearly, if there is no jurisdiction to entertain the “complaint(s)”
then publication ought not to take place.
Indeed, a panel of the Review Council ordered such a publication ban in
Re Kowarsky.
*Disclosure:
33. It was
reasonable and prudent to bring a disclosure motion on behalf of the
Respondent. Indeed, the record shows that contact information for material
witnesses such as A, B , C, D, E, F, G, H, I, J, K, L, were not disclosed in accordance with s.10 of
the Procedures Document. While
information for A and B were finally given the hearing proper had already
commenced. That section places an
affirmative obligation to “forward to the respondent the names, and addresses
of all witnesses known to have knowledge of the relevant facts...” – not just
the ones being called by Presenting Counsel.
It is clear that this provision was not complied with.
Bias:
34. Asserting a
claim of bias is one of the most distasteful yet at the same time one of the
most important claims that an advocate may be called upon to advance on behalf
of a client. The claims advanced were made in good faith in the best tradition
of our adversarial system. The fact they were dismissed does not speak to
whether the Respondent had a legal basis to advance them and for which he ought
to be punished. Clearly, this would put
a chilling effect on a very important and fundamental part of our adversarial
system.
Ex Post Facto Laws:
35. The Registrar
has communicated on May 14th, 2015 an intention or confirmation that
the Review Council’s Procedures has been amended to make the compensation part
of proceedings before a Hearing Panel part of the public hearing.
36. In response to
this notice, counsel on behalf of the Respondent made a specific request for
disclosure of the following information and documents:
1. Cost of the investigation and hearing
of the first proceeding;
2. Cost of the investigation and hearing
of this proceeding to date.
37. At the time of
writing this disclosure request remains unsatisfied.
38. IT IS RESPECTFULLY
SUBMITTED THAT given that the proceedings against the Respondent having been
started under the prior procedures where his prior counsel were both fully
compensated for their efforts on his behalf, it would be contrary to natural
justice, fairness and the Rule of Law to change the rules at this stage. That would amount to an ex post facto
law. There is no valid legal
justification for changing the rules at this time. Indeed, when placed in
perspective the legal costs incurred here were clearly a result of the novelty
and seriousness of the legal issues which arose on what was a very unique
case. Compared to the following it is
not unreasonable at:
1. Re Kowarsky - $37,000 or so for a
guilty plea;
2. Re Massiah(1) - $125,000 plus for a 4
day hearing
with
no jurisdictional questions or abuse of process
and
no Independent Counsel. Also, no
allegation
of
“unwelcome”, “vexatious” or “poisoned
work
environment”
or a “prior record of misconduct”;
3. It is safe to say that persons have
been found to
be
liable of much more serious wrong-doing and
have
had the costs associated with defending
themselves
fully compensated by the Government
of
Ontario;
4. It is just plain wrong to single out
this judicial officer.
39. All of which is respectfully
submitted. As has been the practice in
this proceedings the Respondent will wish the same right afforded Presenting
Counsel to date for a right of reply to Presenting Counsel’s submissions.
May 18th, 2015.
E.J. GUISTE & J.
House, Co-counsel for the Respondent
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