Sunday, August 2, 2015

Some Evidence on Panel's Conduct Allegation Regarding Delay in the Progress of the Proceedings and Inflammatory Comments..

Hearing Dates Scheduled
November 19th, 2013:

   Dates for the hearing in the matter were scheduled on November 19th, 2013 on the consent of the parties.  (see transcript of November 19th, 2013 at p. 69-84)

Panel's motion as
to their jurisdiction
to entertain abuse of
process motion:

   His Worship Massiah's motion materials asserting a lack of jurisdiction and abuse of process were properly served and filed and before the Hearing Panel on July 4th, 2013. On July 24th, 2013 His Worship Cuthbertson, on behalf of the Panel, raised a question of law which counsel for the parties were directed to address.

Excerpts of November 19th
2013 transcripts at p.93-94:

JUSTICE LIVINGSTONE:   The second issue would relate to our jurisdiction, the question put by His Worship on July 24th.  Our view, as we have told you on that, is if this Panel has no jurisdiction then everything else that might follow is a non-issue.  Does that make sense to both ?


JUSTICE LIVINGSTONE:   Do you want, Mr. Guiste, His Worship to state what it is he's asking you to focus on first off ?  Would that help ?

MR. GUISTE:   Let's try that again.

HIS WORSHIP CUTHBERTSON:   Simply put, sir, the complaints committee pursuant to section 11.1 considered a complaint or complaints, whatever it was.  It made a ruling pursuant to section 11.1(15)(c) that a formal hearing into the complaint be held by a hearing panel.

As I pointed out back in July, on July 24th, it is that committee that has the jurisdiction in law to dismiss the complaint if it is frivoulous, an abuse of process, or outside the jurisdiction of the complaints committee.  That's under 15(a).  Clearly, abuse of process is within the purview of that committee.

We are not the complaints committee.  It did its work, and the Review Council disbanded the complaints committee at the end of its work and established this hearing panel, a separate and distinct tribunal from the complaints committee.

We are asking counsel to assist us where the jurisdiction is under the Act or through any case law for us to sit in judgment of decisions made by the complaints committee.  And as Her Honour just stated we think this must be answered before the abuse of process issue is put before the Panel.  If we have no jurisdiction we cannot hear the abuse of process motion.

So we want to focus your minds to the same place we are as to the importance of this issue and the sequence, in our view, that should be followed to address it.  Is that helpful, sir ?

Consent time-table
set for parties to 
make written submissions
on Panel's jurisdiction
motion ( at p.92) Nov.19th):

MR. GUISTE:  Not unreasonable, but my friend Ms. Henein and I had agreed that I could provide my materials, that is on the recusal, if if I intend to do any further materials on the jurisdiction question by February 10th.  She in turn would respond by March 10th.  And if I had any reply to make I would do so by the 21st of March.  That works for both of us, if it works for the panel.

JUSTICE LIVINGSTONE:  That's fair.  If you two had already agreed on it I apologize for - - 

MR. GUISTE:  It's okay.  It was reasonable.

 Excerpts of April 9th, 2014
transcript at p.22:

JUSTICE LIVINGSTONE:   Thank you, Ms. King.  All right.  I believe then we're ready to address the Notice of Motion, the motion of the jurisdiction - - basically raised by us to some degree of the jurisdiction of this Hearing Panel to address the issues.

Scheduling Discussion
on April 9th:

   At the conclusion of the April 9th attendance the Hearing Panel indicated that it would reserve on its decision on whether or not it had jurisdiction to entertain His Worship's motion.  The Hearing Panel led by Justice Livingstone suggested the proceedings start at 9:30a.m. on April 28th unless there was strenuous objection.  Mr. Guiste indicated that his child care obligations made it impossible for him to attend at 9:30 a.m.

(April 9th, 2014 at p.165)

JUSTICE LIVINGSTONE:  Well, we're going to try to start at 9:30, Mr. Guiste, and I'd ask you to try to make your best efforts to get here for then and we'll see how we do on the first date of that order.  Thank you.

MR. GUISTE:  Can I just say this ?  I don't mind the panel - - I respect the panel making decisions, but when the panel expressly makes a decision in terms of a start time, when I clearly and unequivocally tell them about my parental obligations and you compel me to come at 9:30, in my respectful submission that'a a little bit unfair.

JUSTICE LIVINGSTONE:  Thank you for that.  We'll see you at 9:30 on April 28th.

Excerpt from affidavit and Exhibit A
to Christine Hennings
sworn affidavit in response
to bias motion:

2.   On April 12, 2014, Ms. Henein received an e mail from Mr. Guiste, counsel for His Worship Massiah, which was also copied to Ms. Marilyn King, Registrar of the JPRC.

3.   That email is attached as Exhibit A to this affidavit.

To: "Marie Henein" <>, "Marilyn(JUD)King"<marilyn.king?>, "ERROL MASSIAH"<>

Ms. Henein:

I found a very helpful little piece on administrative law that I feel would be helpful to the panel in discharging their adjudicative responsibilities in this case.

The panel initiated the motion on whether or not they have jurisdiction to entertain the Applicant's motion.  The Procedures clearly give them the right to entertain such motions.

Is there any possibility of retaining counsel for the express purpose of advising the Panel of the administrative law principles that they must deal with in this case.  I feel it would be very helpful and would ensure fairness in the process and reliability in any rulings they make henceforth.

I request a written response to this request.


Ernest J. Guiste.

Registrar's E mail 
Ex. 13A:

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

As you know, the Hearing Panel has reserved on its decision 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

Excerpt of April 28th, 2014
transcript (at p. 4-5):

JUSTICES LIVINGSTONE:   And to be brief, the reason we have determined it is appropriate to engage independent counsel to provide us with a legal opinion is because of a point raised by you, Mr. Guiste, on April 9th and I will refer specifically to the transcript, so we are all clear, the transcript from April 9th at page 78, line 8, and I don't know if you wish to have that in front of you, but Mr. Guiste had stated in his submission that: "this case provides a splendid opportunity for us to fix the Justices of the Peace Review Council.  There are some serious flaws in terms of procedural integrity of investigations and the like, and some good may come out of this." Our view is, as a result of that comment, it is clear that the entire procedure is of concern and, if so, we wanted to ensure that we had an independent opinion in respect of the administrative law which applies in this hearing.

Excerpt of Panel
Addendum para 5:

   On April 9th, 2014, Mr. Guiste referred to the complainant whose complaint was the subject of the 2012 hearing that resulted in findings of judicial misconduct by Mr. Massiah.  Despite findings by that Hearing Panel in 2012, based on evidence presented before it, Mr. Guiste stated to this Panel that, "So for example, if Ms. [redacted] decides that she doesn't like His Worship and she decides, okay, well, what I'm going to do is I'm going to round up five people and I'm going to record their - whatever they have to say and send it to the Justices of the Peace Review Council, that calls into question the integrity of the process."

Excerpt of April 9th
transcript (at p.120-121):

MS. FOSTER (Ms. Blight's replacement by the Chief Justice):   I was going to bring up the same points that His Worship did, because it's very clear when one is on the Council that a complaint can come from anybody.  You have said several times talking here about fairness to His Worship and that I appreciate and I understand.

But you have never kind of indicated the fairness to people on the other side.  If you deny a complaint being hearing or if a complaint is being made by somebody or indicated to somebody else, and that is quashed, I would suggest to you that people would find the same indication of unfairness in a complaint not being heard as you have indicated against His Worship Massiah.

MR. GUISTE:   Well, I don't think so.  I think the process - - if you visit the website, you will see that it is very clear that it contemplates a complainant writing their own complaint in writing, it says so, and I suspect that the rationale for that is when you have other people bringing complaints on behalf of others, how do you ensure for fairness ?

So for example, Ms. X, if Ms. X decides that she doesn't like His Worship and she decides okay, well, what I'm going to do is I'm going to round up five people and I'm going to record their - - whatever they have to say and send it to the Justices of the Peace Review Council, that calls into question the integrity of the process.

If an individual has a grievance against a judicial officer, believe me, they know how to and they will execute on their own.  They do not need another party who is part of the governmental apparatus to assist them.  And that's the problem here.  Who is bringing these ?

Excerpt of April 9th
transcript at p.107-108:

...So it's analogous to this situation here.  You are guardians of the process.  You are given the statutory duty and mandate to look at the process and say, does this accord with natural justice and fairness ?  If he wasn't treated fairly, it's your duty to say okay, well, as much as we don't like Justice Massiah, we have to treat him in accordance with law.  And that's what this is a about.

JUSTICE LIVINGSTONE:   Well, I presume you are saying that facetiously.  You're not suggesting that we don't like His Worship ?

MR. GUISTE:   No, no, absolutely not.


NOTE: Care has been taken to assure the accuracy of the excerpts of the transcripts and evidence cited in this post. If there is any error do not hesitate to alert that writer and correction will be made promptly.  Interested persons are encouraged to secure the transcripts of the proceedings to review the record for themselves.

No comments:

Post a Comment