Among the strongest grounds of judicial review of an administrative tribunal's decision is the ground of no evidence. A decision made on no evidence is simply repugnant to the principles of fundamental justice and legality.(see for example Evans and Mullan et al Administrative Law, Cases Text, and Materials 3rd Edition)
No one can reasonably argue against this fundamental point of law.
"A Pyrrhic Victory":
In clear language the Chair of the Hearing Panel stated that the panel would hear all of the evidence and adjourn the consideration of the Abuse of Process motion until all of the evidence was heard. Indeed, the Chair of the Hearing Panel, now fully retired Justice Livingstone, stated that this accomplishment was tantamount to winning the battle but losing the war so to speak. ( "It is a Pyrrhic Victory Mr. Guiste" - p.69 - July 7th, 2014 transcript)
The Hearing Panel heard all of the evidence and did indeed rule on the abuse of process motions after having heard all of the evidence. If all a hearing panel had to do was hear evidence and make any ruling they saw fit we would not need appellate lawyers and appellate courts. The problem is the Hearing Panel dismissed the jurisdiction and abuse of process motion without applying the evidence to their adjudication of the questions of jurisdiction and abuse of process before them and without applying the established legal principles set out by the Supreme Court of Canada in Blencoe v. Human Rights Commission  2 S.C.R. 307. The following points from their Reasons is clear and cogent evidence of this point:
1. As I have written elsewhere, one of the most common errors of law that tribunals will commit when adjudicating issues of this nature is to independently isolate the issues raised on the motion and the substantive issues to be decided. Why would a tribunal do this ? The only reasonable reason for a tribunal to do this is for perceived administrative efficiency. To provide reasons to support their conclusions. In this case they failed to ground their rulings on these motions on the sound evidentiary foundation which the evidence they heard would provide electing instead to make conclusionary findings independent of this evidence.
Breach of Natural Justice
The inherent danger in proceeding in this manner is that there is a very real danger that the tribunal may deny the subject party before them of natural justice by summarily dismissing the motion without carefully applying the evidence to the questions involved in adjudicating the jurisdiction and abuse of process issues. One way in which a tribunal can evade a proper consideration and application of the principles involved in adjudicating these motions is to summarily dismiss the issue as a matter going to the merits and not an abuse of process. The Hearing Panel did exactly that when it summarily dismissed these motions in its Decision of Jurisdiction and Alleged Abuses of Process on January 12th, 2015.
 We found several of His Worship's submissions to be more about the merits of the case than relevant to an abuse of process. We will consider issues relating to the merits of the case in that decision and focus on the abuse of process issues here. (supra)
 Fifth, fading memories may affect credibility of witnesses but do not constitute an abuse of process.(supra)
 The ability of each witness, including His Worship, to recall events and provide accurate testimony on events of years ago is an issue to be assessed when we consider and weigh the evidence on its merits. In our opinion, a passage of time that may cause memory to fade does not, however, form a basis to conclude that there has been an abuse of process. No legal basis or actual prejudice on the facts of this case was presented which counters this view. (supra)
Breach of Natural Justice
1. The Hearing Panel does not cite any evidence from any of the numerous witnesses who testified before them in making the decision to dismiss the jurisdiction and abuse of process motions.
2. The Hearing Panel does not indicate in its reasons which of His Worship's submissions they found to be more about the merits of the case than an abuse of process.
Did the Hearing Panel Apply
Justice Camp Style Reasoning
and Stereotypes ?:
3. The Hearing Panel does not properly address the crucial issue of whether the delay in this case adversely impacted the reliability of the evidence. Instead, the hearing panel did what courts and tribunals have done historically when called upon to adjudicate cases involving the rights of women and African-Canadians in this country and in the United States - they resorted to relying on credibility to the detriment of the Respondent. In the final analysis credibility is the answer for why he was found liable, why he was removed as opposed to some other penalty and to a large extent why he was not compensated for the cost of defending the proceedings. Here are a few examples:
He Spoke like
a "Soul Brother"
 In our view, Ms II's evidence was cogent and unshaken. Regarding her use of the term "soul brother", we accept her evidence that she did not call His Worship a "soul brother" as a racialized term, but rather, used it to describe the tone of his voice and the manner in which he spoke. Ms. II, like other witnesses, including Ms. HH, Ms. BB, and NN, described through imitation in their testimony, the tone and manner of His Worship's "compliments" to them. As Ms. II described, the words as well as the slow, breathy manner of expressing them, were reminiscent of a style of speaking which the phrase "soul brother" connotes. Ms. BB described how His Worship would slowly inhale and exhale, commenting as he was exhaling, in a sensual way. (see Reasons for Decision date January 12, 2015)
Arrogant and Believed
Himself Appealing to
 His testimony, and his demeanour while testifying, painted a picture of a man who is arrogant and who perceived himself to be appealing to women. When his lawyer was questioning him about his compliments to women, he said:
A. My personality, I 'm very compassionate, personable, engaging, understanding individual. And I brought that individual personality and characteristics in my interaction with all of the clerks that I engaged in. I received - I thought I was well received in essence. (Reasons for Decision)
He Did it Before
Must be Guilty:
 In light of the nature of the conduct set out above, the range of women who were recipients of the conduct of His Worship Massiah that has been proven on a balance of probabilities, and his history of judicial misconduct of a similar nature at a different courthouse, his conduct demonstrates a pattern of inappropriate conduct toward women in the justice system. (Reasons for Decision)
Notice of Hearing Expressly
Invites Liability Based on
14. In light of the nature of the conduct set out above in paragraphs 1 to 13, the range of women who were recipients of your conduct, and your history of judicial misconduct of a similar nature at a different courthouse, your conduct demonstrates a pattern of inappropriate conduct toward women in the justice system.
Credibility Factor Played
Out in Media Prior to
"In light of the nature of the conduct set out above, "alleges the notice of hearing" , "the range of women who were recipients of your conduct and your history of judicial misconduct of a similar nature at a different courthouse, you conduct demonstrates a pattern of inappropriate conduct toward women in the justice system." (Michel Manel - Toronto Sun - July 24th, 2013)
"Two strikes and he's out - it's high time Justice of the Peace Errol Massiah is told to hang up his robes." (Michel Mandel - Toronto Sun - January 13th, 2015)
Hearing Panel Failed to Adjudicate
The Question the Act authorized them
s.11.1(10) of the Justices of the Peace Act delineates the legal issue the Hearing Panel is to adjudicate in the following words:
After completing the hearing, the panel may dismiss the complaint, with or without a finding that it is unfounded or, if it upholds the complaint, it may,
(a) warn the justice of the peace....
(g) recommend to the Attorney General that the justice of the peace be removed from office in accordance with section 11.1
The Hearing Panel Adjudicated
Presenting Counsel's Notice of
Hearing which Grossly Exceeded
Reasons for Decision(Liability)
(January 12th, 2015)
 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, 7a, 7b, 7c, 7e, 8a, 8d, 9, 10, 11, 13 and 14 of the Notice of Hearing, have been made out on the balance of probabilities.
Breach of Natural Justice/Fairness
and Error of Law on Application
of Hryciuk v. Ontario:
Allegations 1-6 in the Notice of Hearing invoke rights and obligations under the Ontario Human Rights Code. They include allegations that Massiah's actions were vexatious, unwelcome and amounted to a poisoned work environment. At para 207 of their Decision on Liability the Hearing Panel expressly found that His Worship "acted in a manner inconsistent with the Human Rights Code." None of these allegations were part of what the Hearing Panel found to be the "complaint", namely, The Hunt Report. The record of proceedings shows clearly that HW Massiah was asked by the Complaints Committee to respond to what they investigated. That does not discharge the panels obligations of natural justice and the jurisdictional constraints mandated by Hryciuk.
The overriding error committed by the Hearing Panel and overlooked by the Divisional Court is that the record of proceedings*shows clearly that the items in 1-6 and 14 of the Notice of Hearing were never received by the Justices of the Peace Review Council and never investigated by a Complaints Committee. Accordingly, HW Massiah received no notice of them until Presenting Counsel's Notice of Hearing was issued by the JPRC on or about May 31st, 2013.
and Bad Character
and Tainted the Liability
 Paragraph 14 of the Notice of Hearing alleges that the conduct described in paragraphs 1-13, the range of women who were recipients of his conduct, and together with the history of His Worship's misconduct of a similar nature towards other women at a different courthouse, demonstrate a pattern of inappropriate conduct toward women in the justice system. (see Reasons for Decision - On Liability January 12th, 2015)
S.12 Canada Evidence Act
(1) A witness may be cross-examined as to whether he has been convicted of any offence, excluding any offence designated as a contravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on an indictment.
It is well settled in our law that where the probative value of evidence is outweighed by its prejudicial value such evidence can and ought to be properly excluded. (see R v. Corbett (1988) 41 C.C.C. (3d) 385 (S.C.C.)
It is one thing to invoke a prior record of discipline in the penalty phase of a hearing but a totally different matter to assert such a record in the liability phase and then to expressly ground all of the other allegations on it as was done in Re Massiah (2015). This is not only unprecedented in judicial misconduct hearings in Canada and the Commonwealth but it is entirely inconsistent with established legal principles. This error is compounded where as here the record being relied upon involves allegations which pre-dated the previous finding of liability. According to our Supreme Court of Canada in R v. Skolnick  2 S.C.R. 47 this is NOT a situation in which penalty can be increased as a subsequent offence.
 In light of the nature of the conduct set out above, the range of women who were recipients of the conduct of His Worship Massiah that has been proven on a balance of probabilities, and his history of judicial misconduct of a similar nature at a different courthouse, his conduct demonstrates a pattern of inappropriate conduct toward women in the justice system. (Reasons for Decision - On Liability - January 12th, 2015)
The Deficient Record
*For reasons unknown to the writer, the five volume of transcripts flowing from the Complaints Committee investigation were not part of the JPRC's Record of Proceedings before the Divisional Court although the Hearing Panel incorrectly refers to it as the Investigator's Report in their Decision on Jurisdiction and Alleged Abuse of Process. I have written on this omission before and I have stated that keeping with this tribunal's tradition of fairness and respect for The Rule of Law that this must be inadvertent.
1A - Notice of Hearing (unredacted and subject to a publication ban) - Filed June 10th, 2014
2 - Mr. Ernest J. Guiste letter dated June 28, 2013 and Notice of Motion - Filed July 4, 2013
3 - Applicant's Factum - Filed July 24, 2013
4 - Applicant's Book of Authorities - Filed July 24, 2013
5 - Factum of Presenting Counsel - Filed July 24, 2013
6 - Book of Authorities of Presenting Counsel - Filed July 24, 2013
7 - Applicant't Reply Factum - Filed July 24, 2013
8 - Notice of Motion re Publication Ban - Filed July 29, 2013
9 - Written Submissions of the Association of Justices of the Peace of Ontario - Filed July 29, 2013**(Was later filed on consent by the parties)
Documents the Hearing Panel
and parties agreed would be
"part of the record" but were
not in the "Record of Proceedings"
1. Five Volume Transcripts of the Complaints Committee's Investigation
2. Motion Records and facta on jurisdiction/abuse of process, publication ban, bias
3. Written submissions of the parties on liability, disposition and compensation with the exception of
Written Submissions of the Association of Justices of the Peace of Ontario and Reply Submissions of Presenting Counsel dated October 6, 2014
Hearing Panel Proclaims
The Chair of the Hearing Panel clearly proclaimed on October 8th, 2014 at pages 158-163 of the transcript that all of the above-noted documents would be part of the record "for any further applications which could follow our decision".(see JPRC Record of Proceedings - Vol.III - Tab 60)
What flows from this omission is that a reviewing court's ability to judiciously perform their duty on judicial review with respect to any of the decisions under review is hampered. For example, the Hearing Panel's third finding in dismissing the jurisdiction motion, namely, "the Complaints Committee conducted its investigation within its authority." (see para 7 - supra) How is a reviewing court to review this in the absence of seeing how the investigation was conducted and what was part of it and what was not ? The same can be said with respect to the dismissal of the abuse of process motion. For example, how is the reviewing court supposed to review the important question of whether particulars 1-6 and 14 on the Notice of Hearing were investigated by the Complaints Committee ? In their Compensation Decision one of the factors which the Hearing Panel relied upon in denying compensation was stated in the following words:
 (c) Mr. Massiah's conduct in advancing many pre-hearing motions, which were without merit, frequently appeared to be a deliberate attempt to prolong the process. This caused public resources to be unnecessarily expended.
Once again, how is a reviewing court to review this finding in the absence of being able to independently review the motions records, facta etc. ? Clearly, to simply accept this conclusionary statement by a tribunal in the absence of any evidence is an error of law.
Commentary and Analysis:
In the final analysis, it is this writers opinion that the decisions on liability and penalty in Re Massiah (2015) stand on serious and troubling errors of law. Their decisions are unprecedented in numerous ways including their decision on compensation and their referral of this writer to the Society. Likewise, the Divisional Court's recent decision suffers from similar error.
Note: This piece is written for the sole purpose of drawing attention to an issue of public importance. The removal of a judicial officer in our law is an issue of public importance. The censorship and punishment of lawyers while doing their job is an issue of such importance that the United Nations has saw fit to have policies on it which member states are to respect. Anyone with evidence or law which undermines the opinion expressed in this piece is invited to bring it to the writers attention. Democracy and the Rule of Law work best when everyone is well informed and can express their views without fear of censorship or losing their livelihood.