Excerpts from transcript
of October 8th, 2014 at
p.6
1
--- Upon
commencing at 10:00 a.m.
2
JUSTICE LIVINGSTONE: First of all,
on
3
behalf of the
Panel, I want
to thank all
counsel
4
present for their
excellent efforts at providing
5
us with submissions on all of the issues
that are
6
outstanding
in time that we could
have a full
7
opportunity
to review your
submissions in the
8
context of the case law you've provided.
Excerpt of transcript
of October 8th, 2014
at p.21 - 44:
1
JUSTICE LIVINGSTONE: All right then.
2
Unless there are
any other preliminary issues
3
which counsel have
I believe we're
ready to start,
4
Mr. House.
5
MR. HOUSE: Thank you very much, your
6
Honour.
7
Your Honour, and members of the Panel,
8
it is my honour to address you on behalf of
9
Justice of the Peace Massiah.
10
The case before you is one which is
11
important in a number of respects. First of all
12
it's important to Justice Massiah
and that's very
13
obvious. As well, in my submission, it is
14
important for the principle of the independence of
15
the judiciary.
1
Obviously a Panel
such as this has been
2
created by the
legislature in order
to oversee an
3
element of the
judiciary that is the Justices of
4
the Peace. Justices of the Peace, and I won't
5
refer you to the case
law very much,
but it's very
6
clear, in my submission, from
Ell, and a number of
7
other Supreme Court
cases, that Justices of the
8
Peace are fully protected members of the
9
judiciary,
who ought not
to be interfered with as
10
a constitutional principle, except where there's
11
an overriding reason to do so.
12
And this Panel
has what I would call the
13
awesome power to have an effect on the composition
14
of the judiciary and have an effect overall
on how
15
the judiciary, and
I'm talking about
Justices of
16
the Peace obviously, is composed in the future.
17
We brought two
motions. The first of
18
the motions has
to do with the question of whether
19
we have a complaint, whether
the jurisdiction of
20
this committee is functionally present
in the
21
absence of a complaint in writing.
22
We have filed
extensive materials about
23
this. I would
bring to your attention only the
24
following thing, an expansive definition or an
25
expansive interpretation of what is a complaint
1
leads to an expansive oversight role for this
2
Panel.
3
For example, if the legislature has
4
restricted
your statutory authority to complaints
5
in writing, and you were to decide anything
6
reduced to writing
is also a complaint, what
we're
7
talking about is a vast
increase in your
powers.
8
And in my submission, as a statutory body it is
9
appropriate
that you follow
the law strictly and
10
do not increase your powers by taking, for
11
example, telephone calls into account as
12
complaints in
writing.
13
In this case we have telephone calls,
14
not even the first call, but one of the calls
15
which was reduced
to writing. And it's submitted,
16
I think, that
that's okay, that
really we don't
17
have to be that strict.
1
MR. HOUSE: I think we're going to have
2
to skip that
one. I'll try and find
it later. It
3
just doesn't seem to be marked.
4
In the first case in our book of
5
materials, at tab 1, there's
something that arises
6
just in passing
that I'm going
to mention now.
7
And that is at page I believe
5 where the
8
complaints
process, as set
out by the
legislature
9
in the Ontario
College of Pharmacists Act, is set
10
out. And
there it says --
11
JUSTICE LIVINGSTONE: You're referring
12
to the Katzman
case?
13
MR. HOUSE: Yes. At page 6 they
14
reproduce the statute
and they say,
"Complaint
15
must be recorded." And there they say, "A Panel
16
shall not be selected unless
the complaint is in
17
writing, or is recorded on a tape,
film, disk or
18
other medium."
19
And that's just an example
of what the
20
legislature
could do if the legislature was of the
21
view that a more extensive, expansive jurisdiction
22
was appropriate to this Panel.
23
The Tranchemontagne is at paragraph 43,
24
I've now found
the reference there
and I'd like
to
25
just bring your
attention to that,
tab 5. I have
1
it written down but it doesn't seem to be -- I'm
2
going to read it to you and maybe Mr. Guiste can
3
get the paragraph.
4
"The Legislature defines the
5
jurisdiction of the tribunals that it
6
creates and, so long as it defines
their
7
jurisdiction in a way that does not
8
infringe the Constitution, it is not
for
9
those tribunals (or the courts) to
10
decide that the
jurisdiction granted is
11
in some way
deficient. Accordingly,
12
important as they may be to applicants
13
and administrative bodies, factors like
14
expertise and practical constraints are
15
insufficient
to bestow a power that the
16
legislature did not see fit to grant
17
[the Panel]."
18
And in my submission, when the
19
legislature
has not seen
fit to grant
this Panel
20
anything other than the power
to adjudicate a
21
complaint in writing, the Panel ought
not to go
22
beyond that. And basically, in my submission,
23
with respect, expand
its jurisdiction for the sake
24
of convenience.
25
If I can just insert
something personal
1
here, I was
once in the
Supreme Court of Ontario,
2
Justice Doherty at that time
was in the
Supreme
3
Court of Ontario,
and in response to one of my
4
arguments he said,
"Sir, This is a court
of law,
5
not of convenience." And that struck me as a
6
pithy way of saying the
same thing that
comes from
7
Tranchemontagne.
8
As well, part of our submission here is
9
that the legislature has imposed a restricted
10
power of investigation. And I should say that we
11
will have a second argument later, if you
reject
12
this argument.
13
But to start
with, the legislature has
14
required the investigation be relevant to the
15
precise complaints brought forward.
16
As you will see, and I think you're
17
aware from our
written materials, the
Justice of
18
the Peace Review
Council has put
out materials, in
19
accordance
with its statutory duty, which talk
20
about making a written complaint. A complaint has
21
to be signed,
a complaint cannot
be anonymous, and
22
so on.
23
And in my submission, in our submission,
24
an investigation can only be relevant to the
25
complaint. And "relevant". So the complaint is
1
not something that
gives a vast
power to look
into
2
every nook and cranny of a Justice's life. And
3
that, in my submission, is also an important
4
restriction on the power of this Panel.
5
JUSTICE LIVINGSTONE: Can I just
stop
6
you for a moment, Mr. House?
7
MR. HOUSE: Yes.
8
JUSTICE LIVINGSTONE: And I don't
want
9
to unduly prevent
you from continuing. The
10
Complaints
Committee under section
11.7 of the
11
Act, "Shall conduct such investigation as it
12
considers appropriate."
13
MR. HOUSE: Right.
14
JUSTICE LIVINGSTONE: That's what
the
15
legislation
says.
16
MR. HOUSE: Uh hmm.
17
JUSTICE LIVINGSTONE: So you're
18
suggesting that the Complaints Committee, in what
19
they did or didn't do, went beyond
relevancy?
20
MR. HOUSE: It is not relevant to any of
21
the initial complaints to go out
and interview
22
every person at a workplace. That is not
23
relevant. Even if the Complaints Committee is
24
theoretically given a power to do anything
25
whatsoever
in investigating a complaint, in my
1
submission
the independence of the judiciary is a
2
limiting principle on that.
3
For example, if I complain
that Justice
4
X leered at me in Court, could
the Complaints
5
Committee go and
investigate Justice X's
telephone
6
calls, his financial records, his trips to
7
Bermuda? In my submission, no. There has to be a
8
nexus between the
complaint and the
investigation.
9
If it is not so the result would be that there
10
would be a vast power,
an arbitrary power,
to
11
interfere with the
independence of an individual
12
justice or the judiciary as a whole.
13
JUSTICE LIVINGSTONE: But if I could be
14
devil's advocate to your example?
15
MR. HOUSE: Certainly, please do.
16
JUSTICE LIVINGSTONE: If the complaint
17
is that, say I as a justice
was leering at you as
18
counsel. Would it not be relevant for an
19
investigation
of other lawyers, who appeared in
20
front of me, to inquire
if they observed
me
21
leering at
them? I mean, if the context is the
22
alleged act, leering, not financial records, or
23
telephone records, would it not be relevant,
24
possibly, for other
counsel who have
been in front
25
of the justice
in question to be asked,
"Have you
1
experienced anything like this?"
2
MR. HOUSE: That is part of our
3
alternate submission.
4
JUSTICE LIVINGSTONE: Okay.
5
MR. HOUSE: And perhaps it's worth
6
highlighting
here. We have two submissions. One
7
is there's a restricted power,
that was the
point
8
I was trying to make.
9
JUSTICE LIVINGSTONE: Right.
10
MR. HOUSE: If we're wrong about that
11
and they have a larger
power, then it's our
12
submission that they must do all relevant
13
investigations. In other words, you can't say,
14
"Oh, let's investigate the clerks at court X, but
15
you know court
Y, which is right down
the street?
16
We're not going
to look there. We're
not going to
17
make any investigation there."
18
This is the
second alternative point
and
19
we say, look,
if there's an allegation of sexual
20
harassment get it all out on the table. Do your
21
investigation
at all the
workplaces. We'll have
22
one hearing and one Panel
will decide what the
23
appropriate penalty is. Not two panels, not two
24
cross-examinations, et cetera, et cetera.
25
So in my submission, the way that the
1
legislature
has written the
Act suggests to me the
2
narrower power. But, if you find that I'm wrong
3
about that, and
I'm often wrong,
the alternative,
4
the alternative is critical. That the power
5
cannot be a power to investigate seriatim, in a
6
series.
7
Oh, let's investigate this and see how
8
it comes out. And then if that doesn't
work we'll
9
throw in another
courthouse. And if that doesn't
10
work we'll throw
in another courthouse, et cetera,
11
et cetera, and
we'll keep this
guy off the
bench
12
forever.
13
Obviously that impacts on the
14
independence
of a particular Justice of the Peace
15
and, in my submission, on the independence of the
16
judiciary and the Justices of the Peace as a
17
whole.
18
It's worth thinking
about the fact that
19
Justice of the
Peace Massiah worked
at yet another
20
courthouse which has not been looked at by the
21
investigators. So, let us say that
you determine
22
that in all
the circumstances, and
I don't mean
to
23
suggest this would
be your decision, but in all
24
the circumstances, Justice
of the Peace
Massiah
25
can stay on the bench
and take some
training and
1
get some of these archaic
ideas out of his head.
2
And then they investigate the third courthouse and
3
then your decision is put on hold for
another two
4
years. So I'm kind
of belabouring this
point, but
5
in my submission there are these
dangers. There
6
are these dangers present.
7
I should say, and I'm returning now to
8
my submission that
the narrower power
requires
9
relevance. The Ontario Court of Appeal in the
10
Katzman case at paragraphs 37 and 38 interpreted
11
that statute and,
in my submission, there are
some
12
similarities
there. Obviously a pharmacist is not
13
a Justice of the Peace,
but a pharmacist does have
14
an oversight body
and the oversight body has to
15
ensure that the public is protected. And in that
16
case the Court
held:
17
"...the jurisdiction given to the
18
Complaints Committee by s. 26(2)
19
paragraph 1 is to refer
to discipline a
20
specified allegation which concerns, in
21
some way, the matter complained of.
22
Section 26(2) paragraph 1 does not give
23
the Complaints Committee jurisdiction to
24
refer to discipline allegations of other
25
misconduct uncovered during the
1
investigation of the complaint."
2
And then at paragraph 38:
3
"In this case there's no need to test
4
the outer limits
of what can properly be
5
referred to under s. 26(2)...Here the
6
alleged dispensing errors involving
7
other individuals, but not Ms. Cole or
8
Ms. Yellen came to light during the
9
investigation of the Yellen complaint.
10
They do not concern the Cole and Yellen
11
complaints at
all. They were not
12
themselves
the subject of complaints to
13
the Complaints
Committee. Thus they
14
could not be referred to discipline by
15
the Complaints Committee pursuant to
16
[paragraph] 26.2."
17
JUSTICE LIVINGSTONE: If I can just
18
interrupt once again, Mr. House.
19 * MR. HOUSE: Yes. So again being devil's
20
advocate. In this case we are dealing with our
21
legislation. And our legislation says if there
is
22
a complaint the
Complaints Committee has
broad
23
powers of investigation, and you say
that those
24
are only in respect of relevant issues.
25
Then the Complaints Committee makes its
1
determination
that a hearing
should take place.
2
So the Complaints Committee has completed its task
3
as it's legislated to do and
then the next
body,
4
the Hearing Panel, charges on.
5
MR. HOUSE: Right.
6
JUSTICE LIVINGSTONE: In this case
the
7
previous matters, which
were being dealt
with by a
8
Hearing Panel in relation to His Worship
,were
9
under way, and
then new information came to the
10
attention of certain individuals, including
11
presenting counsel at the previous
matter. Would
12
it not be correct that
the law that
governed us is
13
the law that
emanated from the
Hryciuk decision?
14
Which says that
because new information came to
15
light it could
not be added to the complaint,
16
similar to what
they're saying in Katzman, and
a
17
new procedure had
to commence? No?
18
MR. HOUSE: It probably could not have
19
been added. It was too
late. It was too late to
20
be added. And I'm going to make that point --
21
maybe I'll pass on to it --
22
JUSTICE LIVINGSTONE: Sure.
23
MR. HOUSE: -- if I can right now.
24
Again we should
go to Tranchemontagne, in my
25
submission. And Tranchemontagne, the decision of
1
the Supreme Court of Canada,
stands for the
2
proposition
that you are
required to apply
the law
3
of the Human
Rights Code in its entirety, in its
4
entirety, to this proceeding. And that includes
5
the law about
tardy complaints, complaints that
6
are made out
of time, complaints that are made
in
7
bad faith, complaints that have a prejudicial
8
effect on the person complained of.
9
And I'll just take you to why I think
it
10
says this. Page 9, paragraph 1, tab 5:
11
"Is the Social Benefits Tribunal,
12
("SBT"), a provincially created
13
statutory tribunal, obligated to follow
14
provincial human rights legislation in
15
rendering its
decisions?"
16
"Obligated". That is the question raised
by this
17
appeal.
18
We go to paragraph 46 of the majority
19
decision. "Since the SBT, the tribunal, has not 20 --
21
JUSTICE LIVINGSTONE: Which paragraph,
22
Mr. House?
23
MR. HOUSE: Paragraph 46.
24
JUSTICE LIVINGSTONE: 46. Thank
you.
25
MR. HOUSE: "Since the SBT has not been
1
granted the authority to decline
2
jurisdiction, it cannot avoid
3
considering the Code issues in the
4
appellants'
appeals. This is sufficient
5
to decide the
appeal."
6
So that's our first point. You must,
7
you must include
human rights law, not just in
8
favour of the
complainants, but in favour of the
9
person against whom
the allegations have
been led
10
so that it's
fair. And we will get to the
11
jurisprudence which identifies fairness as a
12
critical principle here.
13
JUSTICE LIVINGSTONE: Just again,
a
14
question.
15
MR. HOUSE: Yes.
16
JUSTICE LIVINGSTONE: Did not that
issue
17
-- was not that issue
covered by the previous
18
Hearing Panel in relation to His Worship
Massiah?
19
MR. HOUSE: The previous Panel said
20
words to the
effect, well, first
of all we're
not
21
hearing this under
the Human Rights
Code we're
22
hearing it under
the Justice of the Peace
Act; but
23
if we were
hearing it under
the Human Rights
Code
24
we would determine that there was
no bad faith
and
25
no prejudice to Justice Massiah.
1
So in that case there
was a finding that
2
there was no prejudice, there
was no bad
faith.
3
And there was
no bad faith
and no prejudice, they
4
do say that,
but that's that case. This is a
5
separate case. The reasons that the people came
6
forward are
different. The people came forward
7
years later, the
people were following the first
8
hearing sort of sub rosa, and they, in my
9
submission,
decided to come
forward because they
10
didn't like his
testimony at the
first hearing.
11
So --
12
JUSTICE LIVINGSTONE: How does that
make
13
the Human Rights
Code applicable here
when the
14
previous Panel held that it wasn't --
15
MR. HOUSE: Well, if the previous Panel
16
had Tranchemontagne put
to them and
they decided
17
that it is wrong then obviously they would be
18
wrong. I submit to you that the governing
19
authority here is Tranchemontagne, the governing
20
authority. Doesn't matter what the earlier
Panel
21
thought. Let me just
--
22
JUSTICE OF THE
PEACE CUTHBERTSON: Sorry
23
could I ask a question, sir, on that?
24
MR. HOUSE: Yes.
25
JUSTICE OF THE
PEACE CUTHBERTSON: I'm
1
referring to your
submissions document. You
2
specifically
in tab 2 reference the
Ontario Human
3
Rights Code, it's paragraph 11 on page 16.
4
MR. HOUSE: Right.
5
JUSTICE OF THE
PEACE CUTHBERTSON: Top
6
of page 17. And you're quoting
section 34 sub
1,
7
as the authority for that and
I understand that.
8
But I also had a look at 45.2, which is
9
referencing
34 sub 1, and it is a section dealing
10
with remedies.
11
MR. HOUSE: Uh hmm.
12
JUSTICE OF THE
PEACE CUTHBERTSON: So
13
when I looked
at that my question is, well, all
14
right, the timelines make sense if you consider it
15
in terms of somebody seeking
a remedy. They have
16
to do it in a timely fashion, and the legislation
17
sets out the time parameters. Nobody is seeking a
18
remedy here.
19
MR. HOUSE: Uh hmm.
20
JUSTICE OF THE
PEACE CUTHBERTSON: So
21
how does the timeline apply, sir?
22
MR. HOUSE: The timeline applies because
23
the Supreme Court
of Canada said that it does. At
24
least that the
principles which protect
a person
25
in a human
rights context, a person against
whom
1
allegations
are made, such
a person should
also
2
have similar
protections. I'm saying this to you,
3
it's not in the Supreme
Court decision, should
4
have similar protections when the person
is a
5
member of the
judiciary. Is this Panel going to
6
decide that, well,
if they had complained in a
7
timely fashion there would have been these
8
protections,
but because they're
out of time
he's
9
-- we are just going to go ahead with this and
10
he's not going
to have those
protections which are
11
related to fairness, that's what the
jurisprudence
12
says, it's fair.
13
So let me just submit
to you, sir, Your
14
Worship Justice Cuthbertson, the sections of the
15
Code -- sorry of Tranchemontagne which are
16
relevant.
17
JUSTICE OF THE
PEACE CUTHBERTSON: Thank
18
you.
19
MR. HOUSE: Paragraph 34, in my
20
submission, is relevant it says:
21
"The importance of the Code is not
22
merely an assertion of this Court. The
23
Ontario legislature has
seen fit to bind
24
itself and all its agents through the
25
Code: s. 47(1). Further, it has given
1
the Code primacy over all other
2
legislative enactments: s. 47(2).
3
As a result of this primacy clause,
4
where provisions of the Code conflict
5
with provisions in another provincial
6
law, it is the provisions of the Code
7
that are to
apply."
8
Now I do want to make -- and I think
9
Your Worship picked
up on this, I gather
that you
10
did, but I'll make the submission anyway. The
11
section of the
Code that gives
primacy to the
Code
12
over other enactments of the legislature is
13
actually only with respect to part 1 of the
14
Ontario Human Rights
Code. If you look at that
15
section, and I don't have
it right in front of me,
16
it basically says
that part 1 takes precedence
17
over any other
legislative enactment unless
the
18
legislature specifically provides otherwise.
19
The right not to be discriminated
20
against for race, religion, nationality,
21
membership in a particular social group, et
22
cetera, et cetera,
that's all in part 1. The time
23
limitation is not in part 1.
24
And when I first was thinking about
this
25
I thought, well,
it looks like
the law is that the
|
|
time
|
limitation doesn't apply because it's
not in
|
2
|
part
|
1. But I
submit to you
that Tranchemontagne
|
3
|
says
|
otherwise. And at
paragraph 39 it
says this:
|
4
|
|
"The second
element in the
|
5
|
|
statutory scheme
that confirms the
|
6
|
|
jurisdiction of the SBT
to apply the
|
7
|
|
Code is the non-exclusive jurisdiction
|
8
|
|
of the OHRC concerning the
|
9
|
|
interpretation and
application of the
|
10
|
|
Code. While s. 14b(6) of the Ontario
|
11
|
|
Human Rights Code...as
|
12
|
|
amended...previously gave
a board of
|
13
|
|
inquiry exclusive jurisdiction to
|
14
|
|
determine contraventions of the Code,
|
15
|
|
the legislature has since
altered its
|
16
|
|
regime. In its
present form, the
Code
|
17
|
|
can be interpreted and
applied by a
|
18
|
|
myriad of
administrative actors.
|
19
|
|
Nothing in the current legislative
|
20
|
|
scheme suggests that the OHRC
is the
|
21
|
|
guardian or the gatekeeper for human
|
22
|
|
rights law in Ontario."
|
23
|
|
And then at the
very bottom it says, of
|
24
|
that
|
paragraph:
|
25
|
|
"It is
hardly appropriate for
this Court
|
1
to now argue with this legislative
2
policy shift towards concurrent
3
jurisdiction, and to seek exclusive
4
jurisdiction of the OHRC."
5
So in my submission the Supreme Court
6
has said that
you have concurrent jurisdiction
7
with respect to human rights
principles, all human
8
rights principles. And it is there that you get
9
your jurisdiction. It is from there that you get
10
your jurisdiction to determine whether
any of
11
these particular witnesses had their rights
12
violated. It is because you are applying the
13
Human Rights Code,
not for any
other reason. Not
14
because there's some policy that someone has
15
articulated. The legislature and the Supreme
16
Court together have
created and have
underscored
17
that this is your jurisdiction.
18
JUSTICE OF THE
PEACE CUTHBERTSON: Mr.
19
House, have you concluded your remarks on the
20
Ontario Human Rights Code?
21
MR. HOUSE: I'm going to be referring to
22
some jurisprudence under the Code.
23
JUSTICE OF THE
PEACE CUTHBERTSON: I had
24
a question about
something you said
earlier, but
25
go ahead and
finish what you're
talking about,
2
MR. HOUSE: Mr. Guiste has provided you
3
with some cases
today which he handed up to you,
4
and they are reflected in our Memorandum of Fact
5
and Law on this point. And
essentially what they
6
reflect is the following, that there is a positive
7
duty on a complainant to show good faith. And
8
there are components of that good faith which
9
exclude waiting for a court
case to be finished,
10
or waiting for
some other remedy
to be addressed,
11
or basically tactically refusing to come forward
12
with a complaint because you think
it might be to
13
your advantage to do so.
14
The case of Vermeer [ph]
is referenced
15
in our written
materials, and I'll just read
16
paragraph 45.
17
JUSTICE OF THE PEACE CUTHBERTSON: Sorry,
18
what tab is that, sir?
19
MR. HOUSE: Vermeer is one
of the cases
20
that was given
to you this morning. It is
21
referred to in our materials.
22
JUSTICE OF THE PEACE CUTHBERTSON: Thank
23
you.
24
MR. HOUSE: And this is on the
question
25
of whether there is good faith.
1
"In determining whether
or not the
2
applicant operated in good faith
in this
3
case I take into account
a number of
4
factors."
5
And this is the Human
Rights Tribunal itself
6
Adjudicator White, referenced Lafleur versus
7
Kimberly Scott.
8
"In another context the Ontario
9
Courts have had occasion to interpret
10
the phrase 'delay' that has been
11
incurred in good faith. To establish
12
the delay in pursuing one's
rights has
13
been incurred in good faith
it must be
14
shown that the
applicant acted honestly
15
and with no ulterior motive."
16
I now skip a couple of the citations.
17
"Delay
has been found
not to have been
18
incurred in good faith where
it was due
19
to willful blindness to the need to make
20
inquiries about one's
rights. The
21
Courts have held,
[and I skip a cite]
22
that the failure
to act in ignorance of
23
one's rights may in some circumstances
24
amount to good faith, however,
it is not
25
enough for a party who must establish
1
good faith to say that he or she was
2
ignorant of their
rights. They must
3
also establish that they had no reason
4
to make inquiries about their rights."
5
That case at paragraph 50:
6
"The tribunal has found that except in
7
the most exceptional of cases ignorance
8
of one's rights
does not constitute good
9
faith."
10
And I would
just make one point here,
it
11
should be clear to this Panel that the --
12
basically the prosecutors who came up with the
13
second set of allegations, first
of all they
were
14
thinking of appearing as witnesses. So -- and
15
they were also following the proceeding in an
16
unofficial
way, the first
proceeding, and in my
17
submission,
what they said
to you about
why they
18
didn't begin -- start before
this, why they
didn't
19
make their application before is nonsense. What I
20
mean here is this, you
had prosecutors, not
all of
21
them because the gentleman whose
name was --
Note:* This is one of a number of errors in the transcript that Mr. Guiste brought to the
attention of the Registrar after the hearing to
bring to the Hearing Panel's attention.
