Saturday, August 1, 2015

Some Evidence on Panel's Conduct Allegation Regarding Delay - Concern for Appearance of Reasonable Apprehension of Bias

Excerpts from
Presenting Counsel's 
May 20th, 2014
written submissions on
Applicant's Bias Motion:

4.   These proceedings have repeatedly been delayed by the Applicant.  There is significant public interest in having this matter proceed in a timely manner.

5.   This hearing commenced with a set date on July 4, 2013.  The Applicant's preliminary motion was set to be heard on July 29.  Evidence was to be heard and the hearing proper concluded that fall.  Instead, the Applicant brought an ill-founded and untimely application for a publication ban that caused the hearing of his motion to be delayed.  Just before the proceedings were to resume in November, counsel informed the Panel that he was otherwise occupied in a Superior Court trial and that the remainder of the 2013 dates would have to be rescheduled.  Co-counsel was no longer available to conduct the hearing because the Applicant had made an allegation of incompetence against him, requiring his withdrawal.

Hearing Panel's 
question of law
on their jurisdiction:

   The Hearing Panel led by His Worship Cuthbertson posed the following question on statutory interpretation to the parties on July 24th, 2013 at p.77 line 5:

"Where is our authority as a tribunal established by the Review Council to sit in judgment of the decisions made by the complaints committee ?

   The Hearing Panel through Justice Livingstone acknowledged at p.77 line 14 that this would take some work on the part of counsel when she stated:

"So, we thought we'd throw that out to you today knowing it's going to take some work, and I invite my co-panelists to comment further as they wish but it would seem to us to be a very important consideration in the concerns raised by Mr. Guiste."

Panel Member Margot Blight's
Disclosure on November 19th, 2013:

MS. BLIGHT:   So Mr. Guiste described a complaint filed by the Registrar against a justice of the peace arising from testimony given at a hearing held before a prior hearing panel.  I can advise the parties that I sat as the lawyer member of the complains committee.

Excerpts from Presenting Counsel's
February 12, 2014 letter to the
Hearing Panel Regarding Ms. Blight
Ex 16:

   "As you are aware, Mr. Guiste is bringing a motion for the recusal of Ms. Blight from the Hearing Panel on the basis of a claim that there is a reasonable apprehension of bias.  While I do not agree with the assertion that there is any basis for actual bias, having considered the legislative framework and the JPRC Procedures, Presenting Counsel does agree that there may be a potential concern about the risk of an appearance of bias if Ms. Blight remains on the Panel."

"As was indicated on the last hearing date, Ms. Blight was a member of a Complaints Committee that investigated a complaint about His Worship's conduct and testimony during the prior JPRC hearing. In private, that Committee investigated an allegation about His Worship that related to the same JPRC hearing that is referenced in paragraph 14 of the allegations set out in the Notice of Hearing.  In particular, the prior investigation conducted by Ms. Blight and the other members of that Committee related to whether or not His Worship had perjured himself in the previous hearing.  Although the Complaints Committee concluded that there was no for proceeding with the complaint, His Worship's credibility and previous testimony in relation to evidence given during that hearing was considered by the Complaints Committee of which Ms.  Blight was a member"

Registrar's E mail
Exhibit 13A:

"The Hearing Panel has asked me to communicate the following information to you.  The information will also be posted on the JPRC website shortly.

As you know, the Hearing Panel has reserved on its decision on the question of jurisdiction to consider matters raised in the motion brought by His Worship in which he argues that there is no valid complaint and that there has been an abuse of process.

Pursuant to section 8(15), the Panel has engaged counsel, Mr. Brian Gover of Stockwoods LLP, to assist it on matters of law.  The Panel will not be issuing its decision before Monday, April 28th.  The appearance on that date will be for the matter to be spoken to.  As no evidence will be called on that date, the start time will be 10.a.m.


Marilyn E. King, Registrar

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