Wednesday, August 12, 2015

Some Evidence on the Hearing Panel's Conduct Allegations: Excerpt of Submissions on the Panel's Jurisdiction and the Scope of the Complaints Committee's Investigatory Powers

Excerpts from transcript
of October 8th, 2014 at

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

limitation doesn't apply because it's not in
1.  But I submit to you that Tranchemontagne
otherwise.   And at paragraph 39 it says this:

"The second element in the

statutory scheme that confirms the

jurisdiction of the SBT to apply the

Code is the non-exclusive jurisdiction

of the OHRC concerning the

interpretation and application of the

Code.  While s. 14b(6) of the Ontario

Human Rights

amended...previously gave a board of

inquiry exclusive jurisdiction to

determine contraventions of the Code,

the legislature has since altered its

regime.  In its present form, the Code

can be interpreted and applied by a

myriad of administrative actors.

Nothing in the current legislative

scheme suggests that the OHRC is the

guardian or the gatekeeper for human

rights law in Ontario."

And then at the very bottom it says, of

"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,

1        sir.
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.

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