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
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
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.
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.
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.
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
2. Ms. Blight’s late revelation that she sat on a prior Complaints
Committee involving the Respondent and voluntarily recusing
3. *Late, incomplete or non-disclosure of relevant information by
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
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
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
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
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:
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.
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.
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
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