Tuesday, July 28, 2015

Some Evidence on Panel's Conduct Allegation:30 Points from HW Massiah's Public Hearing You May Not Have Known

     In this post I wish to bring to light the following 30 salient aspects of this most intriguing little case.

1.  Complaint by Senior
     Management of the
     Ministry of the Attorney

     The current allegations before the Justices of the Peace Review Council Hearing Panel take their genesis from an investigation conducted by a senior Ministry of the Attorney General manager under the auspices of that employer's Workplace Discrimination and Harassment Prevention Policy in August, 2010. According to the investigation report's author the complaints under the WDHPP policy were out of time and therefore her report was forwarded to the Justices of the Peace Review Council as a complaint by this senior manager. The subject employees themselves did not initiate a complaint to the Justices of the Peace Review Council.

2.   Complaints under the WDHPP policy must be initiated within a two year period.  Those allegations were beyond the limitation period prescribed by this policy.

3.   All of the employees involved in the initial prosecution of HW Massiah were covered by a collective agreement which provided protections from discrimination and harassment contrary to the Human Rights Code.

4.   The union played no role in the investigation and complaint initiated by management.

5.   The initial complaint of judicial misconduct against HW Massiah dealt with allegations taking place between 2008 and August, 2010 and involved court staff at 50 Bond Street and 272 King Street in Oshawa.

6.   A public hearing into the initial complaint of judicial misconduct against HW Massiah was heard by a Hearing Panel between September - October, 2011.  He was found liable and received a reprimand, a 10 day suspension and gender/boundary sensitivity training.

Presenting Counsel
sends a "Report"
to the Justices of the
Peace Review Council:

7.   While that hearing was going on five court employees from the court at Rosalyn Street          contacted the lawyer prosecuting HW Massiah with "new information" regarding HW Massiah.
That lawyer interviewed those five persons and forwarded summaries of their information to the
Justices of the Peace Review Council.

8.    The Justices of the Peace Review Council appointed a Complaints Committee to investigate and that body interviewed some 33 persons.

9.     The Complaints Committee uncovers some 14 or so allegations through their investigation.

10.   s.10.2 of the Justices of the Peace Act mandates that a complaint of judicial misconduct against a justice of the peace must be in writing and submitted to the Review Council.  This information is also prominently and clearly articulated on the JPRC website and in their literature.

11.   Other than a senior manager from MAG in the first prosecution and Presenting Counsel (from first proceedings - Mr. Hunt) in the current prosecution, not a single member of the public has ever brought their own complaint in writing to the Justices of the Peace Review Council against HW Massiah.

12.   On or about May 31st, 2013 the Justices of the Peace Review Council issued a Notice of Hearing alleging that between May, 2007 and August, 2010 HW Massiah made unwelcome acts and comments of a sexual nature to court staff, leered at litigants and created a poisoned work environment.

13.    His Worship Massiah did not commit any new infractions following his April, 2012 disposition by a Hearing Panel chaired by Justice Vailencourt.  The "new" infractions in the current proceedings all pre-dated the April, 2012 disposition.

14.   Not a single member of the public(litigants before the court) was called to testify that HW Massiah leered or conducted himself inappropriately in court.

15.   In fact, HW Massiah called a member of the public who court staff had identified in their interview with Presenting Counsel in the first case as having inappropriate interaction with HW Massiah and she had nothing but praise for his court conduct.

16.   HW Massiah called three members of Durham Region management and they had no knowledge of him causing a poisoned work environment for their employees. In fact, one manager testified that most of the witnesses enjoyed a sense of comradery with him.

17.   Current Presenting Counsel agreed to an admission that between 2007 and 2010 no grievance was filed with the Region of Durham with respect to HW Massiah.

18.   Several witnesses admitted that the passage of time adversely impacted their recollection on material points.

19.   A few of the witnesses candidly admitted that they were motivated to come forward on account of their concern that HW Massish may "get a slap on the wrist."

20.  One witness(HH) testified that she did not complain at the time of the "loooking good" occurrence in 2010,"Because truly in the whole scheme of things it was fairly minor in nature."  This same witness, HH, did not remember material points in the "lady in red "allegation addressed at paragraphs 113-117 of the Panel's Decision on Liability.

21.  Examination of another witness went like this:

Q.   Would it be fair to say that on some material particulars your recollections have been weakened by the passage of time ?

A.   I think that would be fair to say.

22.  Examination of another witness revealed the following:

Q.   So, in terms of the specifics, do you know what the comments were about ?

A.   No. I can't remember specifics.  I just remember the impression that was left with me.

Q.  Did anyone approach you particularly about how they felt in terms of Justice of the Peace Massiah's interactions with them ?

A.   Yes it was BB

Q.   And what did she -

A.   I can't remember any of the specifics about it.

23.  One witness testified that she was surprised at the fact that people were coming forward with complaints.  The following is a synopsis of her evidence on this point:

Q.   ...You said that you were surprised that some of the complainants have come forward, because they never seemed to have a problem with it at the time --

A.   That is correct

Q.  -- do you remember saying that ?

A.   Yes, I do.

Q.  What did you mean by that ?

A.   With the clerks in particular, it always seemed to be a laughing, great funny time with His Worship.  I didn't see anybody complaining.  I didn't see anybody coming back later and saying, "oh, wow, he said....I don't remember there ever being any problem with any kind of jokes, I mean...

24.   On one of the particulars on which HW was found liable - he is said to have given a clerk(AA) he was introduced to an up and down stare when introduced to her in 2007.  This is how her evidence went:

Q.    Are you able to describe the circumstances and any details of that meeting ?

A.   I remember being by the Bail Court.  There was two Bail Courts side by side, I was in the back hallway.  I was not working in Bail Court that day, I was working for another justice.  And I remember someone introducing me, I don't remember who that was.  But I do remember the introduction.

Q.   And other than the introduction where you say his eyes wandered, if I can put it that way, every
other interaction with Justice Massiah was professional and appropriate ?

A.   Yes, I would say it was.

25.   The only member of the public who testified regarding their experience in appearing before His Worship Massiah had noting but praise for the manner in which he conducted himself in court while dealing with her case.  The following is some of her evidence:

Q.   Now, in the period of time that you were in His Honour's court, did he say anything inappropriate to you ?

A.   No

Q.   Did he ogle you ?  Do you know what I mean by that ?

A.  Yes.  No, he did not.

Q.   How about leering, winking, undressing you with his eyes ?

A.   No, no

Q.   Was there anything about the way the he comported himself in your case that was offensive to you in any way ?

A.   No, nothing he did.

Q.  In your view, does the reputation of the administration of justice, is it lowered by what happened or raised ?

A.   Raised.

Allegation that Mr. Guiste delayed
the proceedings:

26.   In order to expedite the hearing Mr. Guiste and Ms. Henein agreed that allowing Ms. Margot Blight to voluntarily recuse herself from the panel would expedite the process and avoid a possible quashing of the proceedings.  Ms. Blight sat on the panel from July 4th, 2013 to February 12th, 2014 and revealed on November 19th, 2013 that she sat on a previous Complaints Committee which dealt with a judicial misconduct complaint against HW Massiah.

27.   Unfortunately, subsequent developments in the hearing, including statements by her replacement and others on the panel made it necessary to later bring a motion asserting a reasonable apprehension of bias.

28.   Again, in order to expedite the hearing Mr. Guiste and Ms. Henein agreed that if Mr. Guiste elected to proceed with a motion challenging the independence of Mr. Gover to act as Independent Counsel to the panel this would be done in writing and pursuant to an agreed upon timetable and if not this would end that issue.  The panel agreed to this plan.

29.   A motion asserting a lack of jurisdiction and abuse of process was filed with the panel in July, 2013.  At that time the panel raised a question of law to the parties regarding their jurisdiction to entertain this motion. The panel ultimately retained Independent Counsel to provide them with a legal opinion on their concerns.  Mr. Gover's opinion letter is dated May 23rd, 2014.

30.   The hearing panel invited counsel to make written submissions to them on the issues of jurisdiction and the impact of the Divisional Courts June 6th, 2014 decision between May 23rd, 2014 and July 8th, 2014.  The hearing panel acknowledged the novelty of the legal issues raised and acknowledged that counsels' submissions were helpful to them.  The hearing started July 15th, 2014.

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