Divisional Court Reverses Law Society on Penalty and Costs

   Once again an appellate court has affirmed the fundamental principle in sentencing and penalty dispositions in administrative law proceedings that a lack of remorse can not be an aggravating factor when a person testifies in their defence.  A unanimous panel of the Divisional Court led by Justice Perell overturned a decision of the Law Society of Upper Canada's Appeal Panel issuing a one month suspension and costs of $10,000 flowing from a finding that appellant, Roy D'Mello, failed to cooperate with with an investigation.

   I will delineate the relevant points from the decisions of the Law Society of Upper Canada's Hearing Panel, Appeal Panel and that of the Divisional Court below.

Law Society of Upper
Canada Hearing Panel:

[14]   Mr. D' Mello started with the proposition that his honest belief was a mitigating circumstance but then attempted to re-litigate the issue of the propriety of his refusal to co-operate our earlier findings.

[16]   Nevertheless, based on Mr. D'Mello's testimony and submissions, we conclude that Mr. D'Mello would not act differently in the future were he to be faced with the same or a similar circumstance, despite this proceeding.  Mr. D'Mello was clear that he would not provide documents and information in a future Law Society investigation if he thought that the Law Society was acting improperly.

[20]   ......It is clear that Mr. D'Mello has not learned his lesson.

[21]   As we do not think that a reprimand will deter Mr. D'Mello from similar misconduct in the future, we conclude that a one-month suspension is the appropriate penalty.

Law Society of Upper
Canada Appeal Panel:

[39]   The penalty imposed was within the range, albeit at the high end.


Divisional Court:

[85]   I have already explained above my opinion that the Hearing Panel made inconsistent, adverse, demeaning and procedurally unfair findings of fact against Mr. D'Mello on the very issues that the Hearing Panel had ruled irrelevant to the failure to co-operate proceeding.  In my opinion, these unfair findings tainted the reasonableness of the Hearing Pane's decision about penalty.

[87]   ....That said, both the Hearing Panel's and the Appeal Panel's decisions about penalty became unreasonable when they concluded that Mr. D'Mello was a likely recidivist notwithstanding that he had a genuine belief that thee was an impropriety that would have at least been relevant to the underlying investigation of possible mortgage fraud by the CIBC, which had not been closed at the time of the failure to co-operate proceeding.

[88]   Moreover, it was unfair and unreasonable of both panels to expect Mr. D'Mello to repent and show remorse for his allegations of impropriety at a time when he had provided the documents required by the Law Society without prejudice to his request for an electronic copy of the December 17, 2008 letter, which electronic copy might have given him a defence to the underlying investigation, even if it did not provide hi with a defence to the failure to co-operate proceeding.

[89]   Further, both panels erred in principle by, in effect treating Mr. D'Mello's lack of remorse as an aggravating factor justifying specific deterrence.  Remorse may be a mitigating factor, and the lack of remorse may mean that there are no mitigating factors, but lack of remorse is not an aggravating factor.  Mr. D'Mello sincerely believed that he had no obligation to comply without disclosure of the information to which he believed he was entitled.  Although the Hearing Panel found that belief to be misguided, Mr. D'Mello still had a right of appeal, which he intended to exercise.  He cannot be penalized in that situation for failing to express remorse, which would be a confession of wrongdoing.

[92]   By the time Mr. D'Mello obtained a stay of his one-month suspension, he had already served half of it.  In these circumstances, I shall allow his appeal of penalty and simply set aside the Hearing Panel's penalty order and the costs orders of both panels.


Note: Readers are encouraged to read the full decision - see 2015ONSC 5841 (Canli)  The Appellant, Roy D'Mello was self-represented on his appeal.  The Law Society was represented by L. Maunder and Nisha Dhanoa.  The Divisional Court ordered no costs on the appeal.

What is Hryciuk Error ?

   Hryciuk Error is a form of jurisdictional error committed by an administrative actor where they receive and act on allegations which were not previously screened in the manner mandated by a statutory scheme.  The term takes its name from the seminal judicial misconduct case of Hryciuk  v.  Ontario 31 O.R. (3d) (ONCA).  In that case Justice Jean MacFarland, acting as a statutorily appointed Commissioner under the Courts of Justice Act, recommended to the Attorney General of Ontario that Justice Hryciuk be removed from office as a Provincial Court Judge as a result of her findings of judicial misconduct.

   Unfortunately, Justice MacFarland decided to hear three new allegations which were not screened by the Review Council before they came to her for adjudication.  Judge Hryciuk was not asked to respond to those allegations prior to the matter coming to hearing since they formed no part of the initial complaint.

   This was a fatal jurisdictional error ruled the Court of Appeal for Ontario.  Justice of Appeal Abella writing for court was clear in delineating the jurisdictional error committed by Justice MacFarland in her recommendation for removal from office.  The following excerpts are from the case headnote and are in a nutshell what constitutes "Hryciuk Error":

"The language of the statute is unambiguous, and leaves no discretion to a judge conducting a s.50 inquiry to hear new complaints not previously screened by the Judicial Council."

"By hearing three additional complaints not so referred, she exceeded her jurisdiction."

"The inquiry judge based her recommendation on all of the complaints she heard, including the ones she had no authority to hear.  The evidence of those three complaints formed an integral part of her recommendation that Judge H be removed.  It was, therefore, impossible to say what her recommendation would have been if her finding had been based only on the two complaints she had jurisdiction to hear."

What does this all mean ?

   For my lay readers, this means that all of the allegations forming the basis of removal from office must have been screened in the screening process prescribed by the statute in advance of the hearing. The Court of Appeal in Hryciuk was clear in its decision that not every complaint against a judicial officer warrants a hearing.  Hence, where there is a Notice of Hearing that Notice of Hearing can not raise issues which were themselves not screened by the referring body and the judicial officer was not provided an opportunity to respond to them prior to the hearing.

How should lawyers respond ?

   When I am consulted on such questions of law my practice is first and foremost to read the enabling legislation. The enabling legislation will guide you on this point. My next step is to review the Notice of Hearing to see if it is in congruence with the initial complaint and the investigation.  The Notice of Hearing can not raise legal claims or conclusions which themselves were not screened by the referring body.  If there is a lack of congruence between the Notice of Hearing  - the initial complaint, the investigation and the disposition - this opens up the legitimate arguments of jurisdiction, abuse of process and potentially a reasonable apprehension of bias and potentially a lack of institutional impartiality and independence between the statutory actor and the wing of the executive with the ultimate responsibility for making the removal decision. The key which underlies all of this is the simple principle that justice must be seen to be done !  This simple principle takes on a stronger meaning  - I submit - when judicial independence is at stake.

Hryciuk Error Raised in July, 2013 and Again in May, 2014 in Massiah Case

Excerpts from Applicant's
Factum on Bias Motion
(May 16, 2014):

Table of Contents:

1.   Applicant's Factum

2.   Justices of the Peace Review Council - Procedures Document - p.5

3.   Presenting Counsel E mail dated May 15th, 2014 responding to Jan.7th/14 and
Jan.13th, 2014 from Applicant's counsel

4.   Hryciuk   v.  Ontario 1996 Canlii 4013 (Ont.C.A.) Headnote


1.   The Applicant respectfully requests the Hearing Panel to rule on the following points of law:

(i)   Does the current process of complaint-intake, investigation and adjudication of judicial misconduct complaints under the Justices of the Peace Act give rise to a reasonable apprehension of bias - generally - such that it violates the constitutional doctrine of judicial independence ?

(ii)   If not - Do the particular facts with respect to the intake, investigation and adjudication of this matter give rise to a reasonable apprehension of bias ?

(iii)   Did the Chair of the Review Council have jurisdiction to replace Ms. Blight from the Hearing Panel if so - does this remedy concerns of reasonable apprehension of bias ?

(iv)   Do the matters raised in the Notice of Motion and supporting affidavit establish a reasonable apprehension of bias by the Hearing Panel ?

(v)   Did the Hearing Panel exceed its jurisdiction by retaining Independent Counsel ?

(vi)   If not - did the Hearing Panel display a reasonable apprehension of bias by virtue of their stated reason for doing so ?

"Presenting Counsel"

15.   "Presenting Counsel is the name given to the lawyer retained by the Review Council to prosecute the case before the Hearing Panel.  According to Presenting Counsel's e mail dated May 15th, 2014: "The Registrar, in her capacity as the Registrar and counsel, has the responsibility of retaining Presenting Counsel on behalf of the Review Counsel.

16.   It is Presenting Counsel who prepares the Notice of Hearing.

17.   It is clear on the face of the Notice of Hearing that the 14 counts alleged go beyond the proper ambit of any complaint which could be said to have been received by the Review Council.

Excerpt from Hryciuk
Headnote:

"The language of the statute is unambiguous, and leaves no discretion to a judge conducting a s.50 inquiry to hear new complaints not previously screened by the Judicial Council. The inquiry judge had a specific, narrow mandate under the legislation: to conduct an inquiry, not into the general question of whether Judge H should be removed,  but into whether he should be removed because of those complaints referred to her by the Judicial Council, namely the two complaints referred to in the order-in-council.  By hearing three additional complaints not so referred, she exceeded her jurisdiction.".

Excerpt from the Applicant
Factum on Jurisdiction/Abuse of
Process Motion:(July 11, 2013)

10.  The NOH dated May 31st, 2013 included seven additional counts of alleged misconduct not raised in the Registrar's letter dated January 2nd, 2013.

As above - Letter dated January 2nd, 2013 - Tab 3
Notice of Hearing - Tab 6

11.   Paragraph 14 in the NOH purports to rely upon a "history of judicial misconduct."

As above - Notice of Hearing - Tab 6

Excerpt from Presenting Counsel's
Motion Record - July, 2013:
JPRC Procedures Document

Previous Complaints

A complaint committee confines its investigation to the complaint before it. The issue of what weight, if any, should be given to previous complaints made against a justice of the peace who is the subject of another complaint before the Justices of the Peace Review Council may be considered by the members of the complaints committee where the Registrar, with the assistance of legal counsel (if deemed necessary by the Registrar), first determines that the prior complaint or complaint are strikingly similar in the sense of similar fact evidence and would assist them in determining whether or not the current incident could be substantiated.

Excerpt from Presenting 
Counsel's Written submissions
on liability:

The Notice of Hearing:

22.   The first six allegations are general in nature, encompassing patterns of behaviour rather than specific incidents.  We will therefore focus our submissions on paragraphs 7-14, which relate to specific episodes on which evidence was called.  Presenting Counsel respectfully submits that if some or all of the specific allegations in paragraphs 7-14 are found to have been proven, the general allegations in paragraphs 1 - 6 would easily be made out.

Paragraph 14: A Pattern of inappropriate conduct toward women in the justice system.

179.   All of the above, together with the findings made by the prior Hearing Panel in 2012 (which His Worship now says he "accepts" notwithstanding his recent unsuccessful application for judicial review), clearly amount to a pattern of inappropriate conduct toward women.

Excerpt from Hearing 
Panel's Liability Decision:

210.   Based on the evidence we find to be cogent and compelling, we accept that the allegations set out in paragraphs 1, 2, 3, 4, 5, 6, 7(a), 7(b), 7(c), 7(e), 8(a), 8(c), 8(d), 9, 10, 11, 13 and 14 of the Notice of Hearing, have been made out on a balance of probabilities.

Excerpt from Hearing Panel's 
Decision on Jurisdiction and Abuse
of Process Motion:

6.   Counsel for His Worship argued that the legislative requirements under s.10.2 of the Act were not followed at the time of the purported complaint(s).  As well, His Worship was of the view that the Complaints Committee exceeded its authority in the investigations it undertook.  In addition, His Worship submitted that the Notice of Hearing was improper.  If any of these concerns proves to be valid, then this Panel would not have jurisdiction to proceed.

7.   The Panel finds that it has jurisdiction in this matter, therefore the motion is dismissed.  First, Mr. Hunt was the complainant.  Second, a complaint in writing existed.  Third, the Complaints Committee conducted its investigation within its authority.  Finally, the Notice of Hearing filed as Exhibit 1A and 1B provides this Panel with authority over the hearing.  Accordingly, all of the jurisdictional prerequisites exist for this Panel to fulfill its responsibilities under the Act, including making findings on the evidence and imposing the appropriate disposition.  Our reasons follow.

Truth can be Subverted, Perverted, Distorted but never Destroyed !

Not long ago the late Chief Justice Bora Laskin could
not get an articling position in Toronto, Ontario, Canada
because he was a Jew.

The late Chief Justice Bora Laskin went on to be
Chief Justice of the Supreme Court of Canada and
one of the most respected and influencial jurists in
not only Canada but the Commonwealth.

Not long ago Irish-Catholic lawyers in Toronto were
not welcome in mainstream firms in Toronto and had
to establish their own.

Not long ago the Legislature of the Province of Ontario
had to pass a law in order that Delos R. Davis, a man
of African-Canadian racial background could become
a lawyer.

Not long ago signs in public places in Toronto, New York
and elsewhere in North America proudly proclaimed:

No Jews !

No Irish !

No Catholics !

No Negros !

Our society's record on discrimination and bigotry is there for all to see.
We will either overcome or we will all fail !  

Trial Judge Bias is like "Carding"/Racial Profiling : Some Thoughts from a Catholic African-Canadian Lawyer

Trial judge bias is unconstitutional and morally indefensible.
Proof of trial judge bias renders any decision a nullity.
(see Yukon Francophone School Board 2015 SCC 25)

Carding/racial profiling is unconstitutional and morally indefensible.
Proof of carding/racial profiling will result in a charge being dismissed.
( R  v. Brown 2003 Canli 52142 (ONCA))

Despite the objective reality of the wrongfulness of each of these
acts many among us can not see it.

Those that can see the wrongfulness and dare to speak out are
often victimized.

God help us all !

Court of Appeal Reverses Another Trial Judge on Bias

   Once again, the Court of Appeal for Ontario has reversed a trial judge on the basis of, among other grounds,  a reasonable apprehension of bias - confirming that the right to a fair and impartial trial is a fundamental right of all litigants in our legal system.  In Clayson-Martin  v.  Martin 2015 ONCA 596 the court ordered a new trial following its finding that the trial judge "treated the evidence of the parties unevenly in a way that gave rise to a reasonable apprehension of bias and amounted to an error of law." (at para142)

   Readers may recall that this is the case in which a couple were vacationing in Jamaica and the wife suffered a serious slash to her neck which she maintained was caused by the husband and he was charged with attempt murder. In subsequent proceedings for custody and access to their children the wife asserted, among other points, that since the husband tried to kill her he ought not get access to their children.  The trial judge granted the wife sole custody but also provided what the wife characterized as generous access to the children.  The wife appealed, on among other grounds, a reasonable apprehension of bias in the trial judge which adversely impacted trial fairness.

   On the issue of bias the wife raised the following grounds which is reproduced from the Court of Appeal's judgement:

[17]   Second, she argues that the trial judge's conduct during the trial raises a reasonable apprehension of bias.  The wife submits that the trial judge misapprehended evidence, gave uneven scrutiny to witness evidence supporting the wife as compared to evidence supporting the husband, and differentially assessed the credibility of the wife versus the husband.  She further argues that the trial judge failed to maintain and carry out his role as the independent arbiter: entering the fray, faking over the questioning of witnesses, and advancing theories raised by neither party.  She submits that he demonstrated disdain for the applicant, was on numerous occasions disrespectful to her counsel, and that his interim rulings demonstrate his bias in the husband's favour.

   The following are some of the more salient points from the Court's judgement on the bias issue:

[70]   The Supreme Court of Canada recently noted at para 11 in Yukon Francaphone School Board 2015 SCC 25:

"The objective of the test is to ensure not only the reality, but the appearance of a fair adjudicative process."

[84]   There was no considered analysis of this important evidence which came from a completely independent witness and corroborated the wife's version of the event.

[85]   Instead the trial judge rejects the entirety of this evidence because of a minor inconsistency: an inconsistency about which he was also mistaken in the detail.

[95]   Again, the trial judge is dismissive of the evidence which supports the wife's version of events.  And again focuses on a minor inconsistency between her evidence at the criminal trial where she said: "I grabbed my throat with my left hand and he came at me again...and because my hand was over my throat, he got my thumb, my left thumb."

[96]   And at this trial where she said, "as I was grabbing my neck the knife got my thumb."  The trial judge described the wife's evidence on this point as "all over the map" at the trial before him.  The evidence simply does not bear this out.

[97]   The trial judge's treatment of the wife's evidence is particularly troubling when contrasted with his generosity in treating inconsistencies in the husband's evidence.

[101]   While the trial judge imposes a very exacting standard of the wife's evidence - calling evidence that is in fact quite consistent "all over the map", the jarring inconsistencies in the husband's version get a pass.

[105]   In my view, the trial judge's comparative credibility analysis is troubling.  He brought the wife to task for minor inconsistencies while excusing the husband in the face of glaring contradictions. This suggests an uneven treatment of the evidence and amounts to an error of law.

Treatment of Counsel and Client:

   Although the Appellant(wife) properly asserted as a basis of the trial judge's reasonable apprehension of bias his treatment of her counsel and herself and the Court of Appeal makes reference to it in their judgement it is appears that the court did not expressly make a finding of bias on this point. The court said:

[115]   At the same time, none of these comments, either alone or view together, would themselves have risen to the level of reasonable apprehension of bias.

   Arguably, the treatment of counsel and the Appellant combined with the findings of bias which the court did find would tend to strengthen the Appellant's assertion that she did not receive a fair trial.  At the of the day the underlying rationale for the requirement of impartiality is to preserve and ensure the litigant's right to a fair and impartial trial.


NOTE;  This is a brief summary of the court's judgement.  Readers are encouraged to read the court's actual judgment which can be found on the Court of Appeal's website.

Ernest J. Guiste is available to provide legal opinions to litigants who feel they may have been denied a fair trial.  Call for an appointment:  (416) 364-8908 or E mail your questions to: ejguiste.rightslawyer@gmail.com  

The Appearance of Judicial Impartiality is as Important as the Reality

   Judicial impartiality is arguably the most fundamental component of a system of law governed by what we have come to term The Rule of Law.  In such a system the lawyer plays a pivotal role in bringing this element to fruition.  It is the lawyer who - on behalf of his or her client asserts and ensures that this fundamental element of our system of justice is respected and upheld.

The public interest:

   It is in the public interest for lawyers to seek to bring this right to fruition on behalf of their clients.  Indeed, it can reasonably be argued that this aspect of a lawyer's work is an essential and necessary component to the proper functioning of the administration of justice.

Established and Accepted
Principle of Law:

   The House of Lords, Supreme Court of Canada and the Court of Appeal for Ontario have all recognized that the appearance of judicial impartiality is as important as the reality in very clear language.  Below is what they have had to say on this very important subject.

[60]   It has also been held, in order to maintain public confidence in the administration of justice, the appearance of judicial impartiality is as important as the reality.  In Metropolitan Properties Co. (F.G.C.) Ltd.  v.  Lannon [1968] 3 All E.R. 304 (C.A.) at p. 310, Lord Denning M.R. stressed the importance of judicial impartiality.  He said:

[1]   In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself...It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people.  Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit.  And if he does sit, his decision can not stand.

[62]   This reasoning accords with the decision of the Lord Nolan in R  v. Bow Street Metropolitan Stipendiary Magistrate et al [1999] 1 All E.R. 577  (H.L.0 at p. 592: "In any case where the impartiality of a judge is in question the appearance of the matter is just as important as the reality."

[63]   The appearance of impartiality was emphasized in Wewakum  Indian Band   v.  Canada [2003] 2 S.C.R. 259, at para 66:

"Where disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was."