Monday, October 24, 2016

Did the JPRC's Deficient Record of Proceedings Prevent Meaningful Appellate Review ?


Excerpt of transcript of 
proceedings of October 8th, 2014:

PRESENTING COUNSEL:

My friend seems to be under the impression that means they're lost from the record and
that they don't form any part of the Panel's consideration or the record of the case, that's
obviously untrue.  All the factums, and motion records, notices of motion that have 
been filed in this proceeding are before you and will be preserved as part of the 
record of this proceeding and there's simply no need to mark them as exhibits.


JUSTICE LIVINGSTONE:

Thank you, Mr. Guiste.  The Panel considered the issue of what is properly filed as an
exhibit and what is not required to be filed as an exhibit.  And generally the Panel is 
of the view that any materials filed, such as Mr. Gourlay referred to facta, books of 
authorities, responding facta, et cetera are not technically filed as exhibits, they are
part of the record.

They remain part of the record for any further applications which could follow our 
decision, but they are not evidence per se and therefore would not be filed.

So in our view, despite the fact that exhibits 3 through 8 were filed as exhibits, they
were in an unusual position in relation to the motion with respect to ban of publication,
and perhaps even filed as exhibits inappropriately, but they were and we can't change
that.

So our view is that with respect to your request to have the material with respect to
disclosure and particulars, the motion that was before this court on which we
rendered reasons on June 12, 2014, it is not necessary that those documents be
filed as exhibits.

With respect to the affidavit of His Worship and the materials surrounding that,
His Worship was cross-examined on the affidavit, his testimony is evidence. In
our view all of the material surrounding that is not evidence per se, it is part of
the record but is not required to be filed as an exhibit.

The submissions, the disclosure request documents, which you referred to from
November of 2013, again they are not evidence. They are part of the record. They
will not be filed as exhibits.

With respect to the facta with respect to abuse of process, for which you have
argued it only makes sense for fairness and for the integrity of the process that
we be informed by having them, we have them.  They are part of the record.
They do not need to be filed as exhibits.


Registrar on Record of Proceedings:

"The record for a judicial review includes the transcripts of the proceedings, the
orders made by the Panel and a copy of the exhibits."


Missing from the JPRC Record of Proceedings:

1.   All motion records, facta, book of authorities;

2.   Exhibits 1-9

3.   5 Volumes of Complaints Committee Investigation Transcripts

4.   Reasons on Liability and Disposition of 2011 Hearing Panel

5.   Applicant's Written Submissions on Compensation, Presenting Counsel's
      written submissions on Compensation and Reply which was refused by
      the JPRC - including a Bill of Costs which delineated the costs of the
      proceedings in detail and a copy of the JPRC recently amended Procedures
      Document which was changed to make the Compensation portion of the
      hearing public.


Divisional Court Decision:


1.  Although I properly raised Hryciuk  v.  Ontario (ONCA) as a bar to the
proceedings as early as July, 2013 this aspect of the challenge to jurisdiction
and abuse of process is clearly not addressed in the Divisional Court decision.
While the JPRC Hearing Panel made reference to Hryciuk it is clear on
a proper reading of the record including the written submissions by the parties on
the point that the Hearing Panel clearly misunderstood the holding of the Court of
Appeal in Hryciuk. Hence, they clearly erred in law on a point which they were
required to be correct on.

   The Hearing Panel thought it was sufficient that the "new' allegations were dealt
with in a separate hearing and that they had the authority to determine if the proper
procedures were followed by the complaints committee and that if they determined
that it did that was the end of their duty on Hryciuk. (see Presenting Counsel
submissions on Jurisdiction dated March 13th, 2014 )  Indeed, this is precisely
how Presenting Counsel presented the law on Hryciuk to the Hearing Panel at
p. 10-12 of this document. I properly raised an objection to this instruction
on the motion I brought asserting a reasonable apprehension of bias - as well as
institutional bias which the Hearing Panel also dismissed and found was "entirely
baseless and was justifiably characterized as "frivolous" in the Panel's decision."
(see Compensation Decision at p.11)


2.  Although I properly included His Worship's Answer to the  complaints committee
investigation in his original motion record - wherein he clearly acknowledges that
some of the allegations are consistent with his prior manner of interaction and that
he will not interact that way in the future the Hearing Panel went on to unfairly
attack his credibility and fitness to sit as a judicial officer on account of his testimony.
A proper review of the totality of the record of proceedings - including the Answer to
the complaints committee makes it clear that the testimony which the Hearing Panel
found offensive was the Applicant's truthful testimony that he felt "well received" at
the material time.  The Hearing Panel appears to have erred in misapprehending the
Applicant's evidence on the allegation in the Notice of Hearing that his comments
were "well received" as speaking to his understanding of the inappropriateness of the
prior findings or sexual harassment generally.  Indeed, Justice Marrocco, A.C.J.
appeared to be labouring under a similar misapprehension when he suggested to the
Applicant's counsel in my presence that the Applicant's defence was no defence at all.

3.   In its Compensation Decision the JPRC Hearing Panel takes issue with
various motions properly initiated on behalf of the Applicant and the
propriety of these motions are not addressed - understandably because the
motion records, facta and book of authorities were not in the record. It
appears that the reviewing court did not even have the Bill of Costs and
Written Submissions of the parties on the compensation issue.

Commentary:

   The JPRC Hearing Panel has suggested that I brought inappropriate, baseless and
frivolous motions in representing my client. The Hearing Panel issued a public
Addendum containing their complaint against me to the Law Society of Upper
Canada.  It appears that the chair of the Hearing Panel retweeted a very critical
article by the Toronto Sun's Michele Mandel promoting her Compensation
Decision and my referral to the Law Society a day after the release of her
decision.

   The Divisional Court had the following to say even thought they did not
even have a copy of the Bill of Costs before them:

[55]   The legal expenses issue is not a fanciful one.  In this case, for example, the
applicant incurred legal fees in excess of $600,000.  In setting out that fact, I do not,
for a moment, mean to suggest that the level of legal fees was either appropriate or
justified for what took place in this case.  I merely use it as an example of the type
of financial consequence that may arise for a judicial officer(sic) holder, who finds
her/himself in the position of having to decide whether s/he can actually afford to
respond to a complaint.

   The fact is I acted in the best traditions of the Bar and represented my client fearlessly
and competently.  The cost of this litigation could have been significantly less if the
binding legal authority of Hryciuk  v.  Ontario (ONCA) was respected and applied at
the outset of the proceedings.  I was just doing my job !  My good Catholic upbringing
compels me to speak out against injustice.

NOTE:  This piece is written for the sole purpose drawing attention to issues of public
importance.  The recommendation for the removal of a judicial officer by an
administrative tribunal is an issue of public importance.  The denial of compensation
by the Attorney General for Ontario for a judicial officer who is compelled to defend
himself in judicial misconduct proceedings is also a matter of public importance.
The singling out of a lawyer for prosecution by the Law Society of Upper Canada
for a lawyer who is "simply doing his/her job" is also a matter of public importance.
If I have stated anything that it inaccurate or wrong in this publication kindly bring it
to my attention and I will no doubt correct it.  My purpose is remedial and not punitive.
Justice must be seen to be done.  Too many of our fellow Canadians gave up their lives
so that we can enjoy The Rule of Law and Judicial Independence for me to remain silent.


   

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