The Divisional Court recently upheld a decision of a Justices of the Peace Review Council Hearing Panel removing a justice of the peace from office finding that its decision on liability and penalty were reasonable. That Hearing Panel was formed based on the issuance of Notice of Hearing issued by the Justices the Peace Review Council on May 31st, 2013 and drafted by Presenting Counsel retained to litigate the case by the Justices of the Peace Review Council(JPRC Procedures Document)
The judicial review application is being defended by Presenting Counsel.*
The Divisional Court's ruling is a matter of public importance because the
Notice of Hearing and findings of liability clearly exceed what the Hearing Panel found
to be the complaint - The Hunt Report - since counts 1-6 and 7 was not screened by the
Complaints Committee and the Hearing Panel heard no evidence on the issues raised
in those particulars in the Notice of Hearing - a point raised in the proceedings by the
writer on his joining the judicial officer's defence team in July, 2013.
(Hryciuk v. Ontario 1996 Canli 4013 (ONCA)
The Hunt Report is a private and confidential report prepared by Presenting Counsel, Mr. Doug Hunt for his client.(Applicant's Factum @ Divisional Court) Mr. Hunt is the lawyer who prosecuted Mr. Massiah's first proceeding which resulted in a 10 day suspension(2012). His report was generated as a result of him receiving calls from court staff following a Law Times article about the case which he was presenting at the time. Mr. Hunt interviewed five people and prepared will says which he sent to the Registrar and Counsel or the JPRC, Ms. Marilyn King. When Ms. King received his report she asked "is this a new complaint ?". Mr. Hunt replied that members of the public brought information to our attention and I am forwarding it for your consideration.
A complaints committee was appointed to investigate what the JPRC interpreted to be a complaint and it interviewed 33 witnesses which produced five volumes of investigation transcripts. The bulk of paragraphs 7-13 in the Notice of Hearing issued May 31st, 2013 by the JPRC stemmed not from the Hunt Report itself but from the investigation carried out into it. It is clear that paragraphs 1-6 and 14 were in fact not part of either the Hunt Report or the investigation and accordingly the subject judicial officer was never asked to provide an answer to it and he learned of those specific allegations for the first time following the issuance of the Notice of Hearing. The JPRC decided that the Hunt Report constituted the complaint in writing in January, 2015. The allegations occurred between 2007 and 2010.
A stay of proceedings was sought for the myriad of procedural irregularities including the inordinate and prejudicial delay which adversely impacted hearing fairness and hence the ability to defend. This myriad of procedural irregularities prompted the hearing panel to retain high profile lawyer, Brian Gover, for an opinion on the jurisdiction and abuse of process motions raised on behalf of Massiah. Mr. Gover provided his opinion but it appears that the hearing panel did not accept and apply the legal principles from Blencoe v. B.C. Human Rights Commission [2000] 2 S.C.R. 307. The hearing panel issued two decisions after hearing all of the evidence. One decision was on the two motions. The other was on the merits. The former decision was made by the hearing panel on the same day but did not involve its assessment of the evidence. This is what the hearing panel had to say:
[116] We find there is no time limit for allegations of judicial misconduct to be filed as complaint with the Review Council.
[119] 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 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.
In what is a first in Canada the Hearing Panel went on to refer one of two counsel who represented the judicial officer to the governing body for lawyers in Ontario, The Law Society of Upper Canada alleging that he committed professional misconduct in discharging his duties as a lawyer. In addition, the Hearing Panel denied the judicial officer's claim for compensation to cover his cost of defending the allegation of judicial misconduct. The Divisional found the Hearing Panel's decision on compensation to be flawed and remitted it back to the JPRC. It is important to appreciate that the Hearing Panel denied compensation to the judicial officer in 2015 and counsel raised the Hryciuk error in the NOH in July, 2013. Clearly, a careful evaluation of the entire record of the proceedings and the Bill of Costs submitted to the Hearing Panel would reveal that in fact the issues around the legality of the complaint and the items which constitute the Hryciuk Error complicated the proceedings and increased the jeopardy faced by the judicial officer and the cost of the defence.
Deficient Tribunal Record
Regrettably, the JPRC Record appears to be missing copies of the motion records, facta and books of authorities filed by the parties with the Hearing Panel which both Presenting Counsel and the Chair of the Hearing Panel confirmed on October 8th, 2014 at pages 158-163 of the transcript would be part of the record "for any further applications which could follow our decision.(see JPRC Record of Proceedings - Vol.III - Tab 60) Given the high standards of fairness of this tribunal in the discharge of its mandate I can only assume that this deficiency in the Record of Proceedings is inadvertent and that it will be corrected.
Ironically, it would appear that the Divisional Court's finding that the JPRC 2013
decision was reasonable is inextricably tied to the hearing panel's finding that the judicial officer was not credible before them and hence incapable of carrying on judicial duties. This is precisely the concern raised on behalf of the judicial officer which the hearing panel took exception to in referring counsel to the Law Society of Upper Canada and indeed in denying the judicial officer compensation for defending the proceedings. This is what the Hearing Panel cited to the LSUC in their referral:
(4) On November 4, 2013, Mr. Guiste stated, "you have the Ministry of the Attorney
General and you have the Justices of the Peace Review Council...there appears
to be either intentionally or unintentionally, objective of seeking to, "if we can't
get him out by legitimate means in accordance with law, then we will so taint his
reputation so that he will be unfit." He further explained his comments by stating:
"Intentionally or unintentionally it appears to me that the Ministry of the
Attorney General and the Attorney General for Ontario have decided in their
wisdom that, "If we cannot get rid of Justice of the Peace Massiah within the
bounds of the law - that is, with respect to legitimate complaints brought in
accordance with the statute - then we will seek to remove him from office by
virtue of the deliterious effects of the publications by virtue of the nature
of the allegations."
Here are the relevant portions of the Divisional Court's Reasons:
[40] The 2012(sic) Panel had also made a finding regarding the manner in which the
applicant had given evidence before it that necessarily weighed heavily on their
conclusion as to the appropriate disposition. In its reasons on the merits, the 2012(sic)
Panel had said:
"In all of these aspects, we find His Worship's evidence to be problematic. His
testimony was replete with inconsistency, an air of insincerity, and efforts to
adjust his testimony to minimize the inappropriateness of his conduct. We do
not accept that he is a credible witness or that his evidence was reliable. (para 174)
[41] The 2012(sic) Panel referred back to this finding towards the end of its decision
on disposition. I agree with counsel for the JPRC that it is difficult to see how, in light
of this finding, that is amply supported by the evidence, the 2012(sic) Panel could have
achieved the necessary goal of restoring and maintaining the integrity of the judiciary,
if it permitted the applicant to remain in his position as a justice of the peace. It is
tough to see how the applicant could be seen as being able to carry out his duties of
adjudicating matters affecting members of the public, in light of this devastating
attack on his own credibility.
Legal Error(s):
In reviewing the legality of the removal of a judicial officer by an administrative tribunal the Divisional Court is exercising both statutory and constitutional jurisdiction. In exercising its powers under the constitution with respect to judicial independence the Divisional Court ought not be limited by the acts or omissions of counsel or the parties otherwise those fundamental rights are capable of being rendered merely illusory rather than binding. It stands to reason that in the context of this type of litigation it is for the court to ensure that both the proceedings before the administrative tribunal and before it are in accordance with law.
A court's duty to thoroughly review the administrative tribunal's record of proceedings is heightened since argument before the JPRC Hearing Panel included claims that they lacked jurisdiction by virtue of not having a complaint in writing pursuant to the enabling legislation, the complaints committee exceeded its jurisdiction in ordering a hearing, the Notice of Hearing was improper in that it contained as much as seven discrete particulars which were never pre-screened by the complaints committee as required by Hyricuk v. Ontario(ONCA), they disregarded established legal authorities from the Supreme Court of Canada such as R v. Skolnick [1982] 2 S.C.R. 47, Blencoe v. B.C. Human Rights Commission [2000] 2 S.C.R. 307 and that their penalty decision was a collateral attack on the 2011 Hearing Panel decision chaired by Justice Vaillencourt - the cumulative effect of which constituted an a abuse of process at common law for which a stay of proceedings ought to have been granted.
In a nutshell, the Divisional Court's decision upholding the JPRC Hearing Panel's decisions on liability and penalty as being reasonable is fundamentally inconsistent with the level of judicial scrutiny called for in the review of the application of the fundamental principle of judicial independence. The legal error or errors in the decision is best summed up by a quote from The Hon. Justice David Stratas in his very thoughtful and provocative paper entitled The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency:
"When we review the decisions of the executive and its agencies, we must always:
- act in a coherent and consistent way relying upon pre-determined, objective doctrine
emanating from and reflecting the animating concept behind judicial review, namely
the tension between Parliamentary supremacy and the reviewing courts' duty to
enforce rule of law standards, and other legal concepts known to our law, including
public policies emanating from legislation and relevant to the task at hand; and
- avoid resorting to ad hoc subjective impressions, aspirations, personal
preconceptions, ideological visions, or freestanding policy opinions - matters that
can depend on the idiosyncrasies of an individual judge and can vary unpredictably
- about what is just, appropriate and right.
The former is the stuff of legal contestation and the legitimate domain of the courts; the
latter is the stuff of public debate and the politicians we elect." (at p.25)
Was Dunsmuir v. New Brunswick
Followed ?:
A finding that an administrative tribunal's decision is reasonable is one which may suggest that the reviewing court is applying the Supreme Court of Canada's binding decision in Dunsmuir v. New Brunswick 2008 S.C.R 9. However, if the reviewing court's decision fails to cite that decision and objectively apply the legal principles flowing from that decision to its conclusion of reasonableness it is hard to see and understand just how the reviewing court came to this conclusion. That is a very serious problem in a case such as this. (R v. Sheppard [2002] 1 S.C.R. 1 and LSUC v. Neinstein (2010) 99 O.R. (3d) 1 (ONCA))
A Look at the 2013 JPRC Panel
Findings:
[23] As the allegations in the complaint relate to sexually-themed comments and
conduct by His Worship, we have jurisdiction to look beyond the Justices of
the Peace Act and to consider the law of sexual harassment and sexualization
in the workplace as defined under the Human Rights Code to assist us in
determining whether there was judicial misconduct...
[24] The Ontario Human Rights Code R.S.O. 1990 c H.10 (the Code) defines
harassment in section 10, as "engaging in a course of conduct of vexatious
comments or conduct that is known or ought to be known to be unwelcome".
A single instance of inappropriate conduct may be a violation of the Code
if it creates a poisoned environment.
[26] Sexual harassment is recognized by the Supreme Court of Canada as a form of
discrimination on the basis of sex...
[27] A"poisoned work environment" can exist when unwelcome comments or conduct
inappropriately sexualized a workplace...
[29] At a previous JPRC hearing, in addition to the one involving His Worship Massiah,
an inappropriate sexualized comment to a female court staff was held to amount
to a finding of judicial misconduct: Re Kowarsky (JPRC 2011)
[64] The allegations contained in paragraphs 1 though 6 of the Notice of Hearing,
as referred to herein paragraph 32, describe general patterns of behaviour, rather
than specific incidents.
[65] For the sake of clarity, we will firstly address the specific acts alleged, in
paragraphs 7 through 14 of the Notice of Hearing in the context of the
evidence, and then we will relate the specific acts which we accept occurred, if
any, back the general allegations.
[207] ....However, we find that His Worship acted in a manner inconsistent with the
Human Rights Code. His actions constituted sexual harassment and he
failed to treat others in the justice system with mutual respect and dignity.
Divisional Court's
Pronouncement on
Unwelcome Test for
Sexual Harassment:
In Thames Valley District School Board v. Elementary Teacher's Federation of
Ontario the Divisional Court 2011 ONSC 1021 stated the following:
[34] In order to establish harassment under human rights legislation, it is not necessary
to prove intention to harass. Rather, the test is an objective one (Stadnyk v.
Canada (Employment and Immigration Commission, [2000] F.C.J. No. 1225,
257 N.R. 385 (C.A.) , at para 11)
Divisional Court's
Pronouncement on
Poisoned Work Environment:
In Crepe it Up ! v. Hamilton 2014 ONSC 6721 the Divisional Court stated the
following:
[18] In General Motors of Canada Ltd. v. Johnson 2013 ONCA 502 Crong J. A
discussed the concept of a poisoned work environment, albeit in the context
of a wrongful dismissal action, at paras 66 and 27:
....There must be evidence that, to the objective reasonable bystander, would
support the conclusion that a poisoned workplace environment had been created...
Moreover, except for particularly egregious, stand-alone incidents, a poisoned
workplace is not created, as a matter of law, unless serious wrongful behaviour
sufficient to create a hostile or intolerable work environment is persistent or repeated.
Ontario Law on Unwelcome
Applied by HRTO:
[198] The Legislature recognizes the fear of retaliation an employee may experience
in informing someone in her or his workplace, especially one in authority, that
his or her conduct is unwelcome. On the other hand, the Legislature recognizes
- as well as the Supreme Court of Canada in Blencoe - the inherent stigma,
which attaches to a serious allegation of sexual harassment. Thus, it has
established a scheme, which acts as a sword or a shield for the complainant
or the respondent, respectively. The complainant can inform the alleged
perpetrator that her or his sexual advance or solicitation is unwelcome
without fear or retort. And, where there is reprisal, or threat, there is
statutory redress. Without that protection, a complainant may not be able
to assert her or his right or prove that the conduct was unwelcome, for
invariably, the defence will be that the victim did not communicate that
the conduct was unwelcome. (Farias v. Chung 2005 HRTO 22 Canli)
JPRC erred
in law on Human Rights Code
Interpretation and Application
to the evidence:
[128] We also find that any obligation an employee of the Region may have had to
report any inappropriate behaviour by His Worship to his/her employer is
irrelevant to our ability to conduct this hearing. This is a hearing regarding
alleged judicial misconduct under the Act, not a right that may exist for an
employee of the Region of Durham under the Collective Agreement or the
Regional Municipality o Durham, Harassment and Discrimination Prevention
Policy. The authority under the Act to address judicial misconduct is not
outsted by documents that are put in place to protect the rights of employees.
[129] We accept that training was provided to His Worship Massiah regarding
workplace conduct and the need for respect towards all stakeholders in
the judicial system...Some notable excerpts from the power point presentation
are:
Is Known or Ought Reasonably
be Known
- The onus of recognizing harassment rests primarily with the harasser
- The victim is not obliged to verbally say "stop".
- Blushing, embarrassment, and moving away are all ways of indicating that
the behaviour is unwelcome and should stop
Unwelcome
- The test is whether the behaviour is unwelcome to the victim, not the harasser....
[130] Nothing in the HRC indicates that the victim must advise a harasser that his/
her actions are unwelcome. That is also made clear in the power point
presentation above.
Panel Ignored Evidence that
conduct was "well received"
at the material time:
22. KK one of the managers in the Court Services Area testified that HW Massiah had
in the past complimented her on looking good and losing weight and she took no offence
to his comments but saw them as a compliment.(see Applicant's Written Submissions -
Part II at p.9 para 22)
23. GG, a witness called by Presenting Counsel gave insightful evidence into HW
Massiah's rapport with the court staff: She said:
"I thought he was very nice. I thought he was friendly, approachable, I thought he was
nice. A lot of them, a lot of the justices, you feel nervous, you don't want to speak to
them. He was more workable and friendly.".....But people were happy to see him
rather than some of the other ones that come in. Again, I don't know if that's because
he would be considered a good-looking older man, or if its because he was friendly
and approachable, people liked him, as opposed to some of the other justices of the
peace who talk to you like they're I don't know ...just like they're much better than
you, which may be the case, but you know, certain ones treat you like you're on
the same level they are, which we do appreciate.".....It didn't bother me that much.
I wasn't really offended by it. I'm surprised everybody else was offended by it,
because they never seemed to have a problem with it at the time."(see same doct.)
27. The following set of questions and answers of GG provides some insight into
the culture or standard of conduct of the work environment:
Q. Was he considered attractive ?
A. I'd say he was yes.
Q. Was there talk to the effect amongst the staff ?
A. Yes.
Q. Can you describe that for us ?
A. Um, well, um we would find out who the justice of the peace is, and you know,
courtroom 105 that day, if was His Worship Massiah, we would say, um - -I
don't remember exact terms its been a long time.
Q. Sure.
A. But people were happy to see him...(see same doct.)
Overlooked Evidence
(Defendant)
The only defendant called before the Hearing Panel testified that HW Massiah did not
act inappropriately in any manner with her and in fact increased her coincidence in the
administration of justice.
The panel released a list of letter acronyms for witnesses who testified before them in
accordance with the publication ban. Two witnesses called on behalf of HW Worship
are not only not on this list but there evidence is nowhere to be found in the Reasons
on Liability or Disposition.
Evidence of Improper
Conduct Ignored by
JPRC Hearing Panel:
HH, QQ and II testiied that they came forward in order to ensure that HW Massiah
did not get a " slap on the wrist." Each of them admitted that they were essentially
dissatisfied with the penalty imposed by the Justice Vaillencourt Hearing Panel.(2011)
(see Applicant's Written Submissions - Part II and Part III)
Application of Kowarsky
(JPRC 2011):
1. HW Kowarsky said to a court clerk in open court while the recording equipment was
on - "Madame clerk I am ready for my blow job now."
2. HW Kowarsky received an order for a publication ban prohibiting his identification
between March 25, 2011 ad the next date that counsel appear before the panel,
including no publication of the Notice of Hearing on the JPRC website;
3. HW Kowarsky received an order for a Pre-Hearing Conference pursuant to
Paragraph 14 of the JPRC Procedural Code for Hearings
4. HW Kowarsky received a reprimand for his judicial misconduct along with a transfer
to another court.
5. HW Massiah never propositioned anyone for sexual favours.
6. HW Massiah was denied a publication ban and his request for one was determined by
the Hearing Panel to be "relief that was factually and legally impossible to grant."
7. HW Massiah was denied a Pre-Heairng Conference despite his request for one.
8. HW Massiah was denied a transfer and was removed from office without any
opportunity to carry-out the disposition of the Vaillencourt Panel(2011).
Below is a copy of the relevant portions of the factum filed on behalf of HW Massiah on the publication ban motion:
committed Hryciuk
Error:
Presenting Counsel's
Written Submissions
on Liability(Sept.15/14):
[21] 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.
Respondent's Written
Submission: (July 11, 2013)
[10] The NOH dated May 31st, 2013 included seven additional counts of alleged
misconduct not raised in the Registrar's letter (on behalf of the complaints
committee) dated January 2nd, 2013.
JPRC Liability
Finding(January 12th 2015):
[210] Based on the evidence we find to be cogent and compelling, we accept that the a
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.
JPRC Disposition
Finding:
[64] When we consider the extent and duration of His Worship Massiah's misconduct,
and his testimony, before us, which demonstrated a complete lack of insight into
the gravity of his misconduct even after a previous public hearing, we conclude
that the dispositions set out in paragraphs 11.1(10) (a) to (f) are not sufficient to
restore public confidence in His Worship Massiah or in the judiciary in this case.
Hryciuk v. Ontario (ONCA):
Headnote
"The language of the statutue 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 the in the order-in-council. By hearing three
additional complaints not so referred, she exceeded her jurisdiction."
Law is not a science. Intelligent minds may differ on many a legal issue. Having read the Divisional Court's reasons I for one fail to understand how the reviewing court came to the conclusion that it did. I am also concerned that the reviewing court mixed up the two panels which the moving party on the judicial review faced and consistently erroneously refers to the decisions under review before them as the 2012 Panel when it was the 2013 Panel's decisions which were before them for review.
The fact is that the 2013 Panel overruled the 2012 Panel when it boldly stated in its Decision on Disposition - where it increased a 10 day suspension with removal from office for substantially the same conduct which pre-dated or was concurrent to those of the 2012 Panel - an act which I argued constituted an abuse of process for which a remedy was necessary:
"The Previous Hearing Panel concluded, based on the information presented
at that time, the public nature of the hearing would have brought home to His
Worship any misunderstanding about his position of authority in relation to female
staff. That belief was proved wrong by His Worship's testimony before us."
Conclusion:
The points of law discussed above and which were before the Divisional Court for
judicial review called for a standard of review of correctness.(see Barriolhet v. JPRC
2011 ONSC 3246 at para 24 (Div Ct.) The JPRC Notice of Hearing and the Hearing
Panel used the Human Rights Code to ground the allegations of judicial misconduct
against HW Massiah. In doing so the panel surely can not disregard established legal
principles such as the legal concepts of "vexatious", "unwelcome" and "poisoned work
environment" and deny him the well recognized defence of consent and "being well
received". The Code is quasi-constitutional legislation which can not have a different
application for judicial officers than it does for all other citizens of Ontario. Abuse of
process and the application of Blencoe is also a matter calling for correctness under
Dunsmuir v. New Brunswick (supra). Hrycicuk (supra) is a binding legal authority
from the Court of Appeal for Ontario court calling for a standard of correctness.
In addition, based on the legal principle set down by the Supreme Court of Canada in
R v. Stolnick(supra) HW Massiah did not re-offend. Arguably, for the purposes of
Disposition he appeared before the Hearing Panel without a history of misconduct
since the allegations before them pre-dated the first Disposition.
Did the Hearing Panel
embark on the wrong
inquiry in focusing
on the Notice of Hearing ?
* I have written elsewhere on the potential problems that this can pose to a tribunal's appearance of impartiality and its utility to the reviewing court citing respected jurist Justice of Appeal Goudge's caution in a number of decisions before the Court of Appeal for Ontario where the question of the role of a tribunal in resisting judicial review proceedings against itself has been litigated. In this case Presenting Counsel argued that the hearing panel's jurisdiction stems from the Notice of Hearing -which Presenting Counsel drafted. Independent Counsel, Mr. Brian Gover, advised the hearing panel in the following words on this point:
"It also appears clear to us that there is jurisdiction in the Hearing Panel to consider questions of law specifically arising under s.10.2 of the JPA not only because of these general factors, but because the Hearing Panel's own governing provisions (s.11.1) repeatedly refers to the subject matter of the hearing as being the "complaint". This is seen, for example, at ss.11.1(9), (10) and (19). Particularly with respect to s.11.1(10), the triggering event for the Hearing Panel's jurisdiction to impose specific dispositions is the Hearing Panel's view as to whether to uphold the "complaint". It is therefore necessarily the case that the Hearing Panel must have the power to consider both the content of, and the legislative requirements applicable to, a "complaint" within the meaning of the JPA, since ultimately it is a "complaint" which the Hearing Panel is adjudicating."
Hearing Panel
Departs from Opinion
they Sought:
The Hearing Panel once again departed from the opinion which they sought and received from highly qualified and respected administrative law counsel, Mr. Brian Gover, and concluded as follows in their Decision on Jurisdiction and Alleged Abuses of Process:
[73] Therefore, the Notice of Hearing with its particulars, dated July 4, 4, 2013 and filed as Exhibits 1A and 1B, provides our jurisdiction over this hearing.
In the final analysis the Hearing Panel went on to adjudicate not the "complaint" as it is statutorily mandated to do by s.11.1(10) of the Justices of the Peace Act but the particulars in the Notice of Hearing. They said in their Decision dated January 12, 2015:
[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 the balance of probabilities.
s.11.1(10) 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) ward the justice of the peace;
(b) reprimand the justice of the peace;
(c) order the justice of the peace to apologize to the complainant or any other person;
(d) order that the justice of the peace take specified measures, such as receiving
education or treatment, as a condition of continuing to sit as a justice of the peace;
(e) suspend the justice of peace with pay, for any period;
(f) suspend the justice of the peace without pay, but with benefits, for a period up to
30 days; or
(g) recommend to the Attorney General that the justice of the peace be removed from
office in accordance with section 11.2
Note: This piece is written for the sole purpose of drawing attention to issues of public importance. The issues of public importance in this case include the removal of a judicial officer from office, the arbitrary decision by the Hearing Panel to order that one of the judicial officer's lawyers before them not act on the case before them and their publication of an Addendum wherein they referred the said lawyer - the writer - to the Law Society of Upper Canada with an allegation that he committed professional misconduct and lastly they declined to recommend that the Attorney General indemnify the judicial officer for the two year defence of the judicial misconduct allegations against him contrary to established legal principles - leaving the lawyer unpaid for two years hard labour in defending the judicial officer.
The opinions expressed here are those of the writer based on his knowledge of the law. Law is not a science. Lawyers and judges often differ on legal questions. This is the nature of our system of law. Full and robust discussion on issues of public importance is in the interest of all. This opinion is shared with the community in this spirit. Anyone who disagrees with the opinion expressed here is invited to post their comment here or elsewhere.
The judicial review application is being defended by Presenting Counsel.*
The Divisional Court's ruling is a matter of public importance because the
Notice of Hearing and findings of liability clearly exceed what the Hearing Panel found
to be the complaint - The Hunt Report - since counts 1-6 and 7 was not screened by the
Complaints Committee and the Hearing Panel heard no evidence on the issues raised
in those particulars in the Notice of Hearing - a point raised in the proceedings by the
writer on his joining the judicial officer's defence team in July, 2013.
(Hryciuk v. Ontario 1996 Canli 4013 (ONCA)
The Hunt Report is a private and confidential report prepared by Presenting Counsel, Mr. Doug Hunt for his client.(Applicant's Factum @ Divisional Court) Mr. Hunt is the lawyer who prosecuted Mr. Massiah's first proceeding which resulted in a 10 day suspension(2012). His report was generated as a result of him receiving calls from court staff following a Law Times article about the case which he was presenting at the time. Mr. Hunt interviewed five people and prepared will says which he sent to the Registrar and Counsel or the JPRC, Ms. Marilyn King. When Ms. King received his report she asked "is this a new complaint ?". Mr. Hunt replied that members of the public brought information to our attention and I am forwarding it for your consideration.
A complaints committee was appointed to investigate what the JPRC interpreted to be a complaint and it interviewed 33 witnesses which produced five volumes of investigation transcripts. The bulk of paragraphs 7-13 in the Notice of Hearing issued May 31st, 2013 by the JPRC stemmed not from the Hunt Report itself but from the investigation carried out into it. It is clear that paragraphs 1-6 and 14 were in fact not part of either the Hunt Report or the investigation and accordingly the subject judicial officer was never asked to provide an answer to it and he learned of those specific allegations for the first time following the issuance of the Notice of Hearing. The JPRC decided that the Hunt Report constituted the complaint in writing in January, 2015. The allegations occurred between 2007 and 2010.
A stay of proceedings was sought for the myriad of procedural irregularities including the inordinate and prejudicial delay which adversely impacted hearing fairness and hence the ability to defend. This myriad of procedural irregularities prompted the hearing panel to retain high profile lawyer, Brian Gover, for an opinion on the jurisdiction and abuse of process motions raised on behalf of Massiah. Mr. Gover provided his opinion but it appears that the hearing panel did not accept and apply the legal principles from Blencoe v. B.C. Human Rights Commission [2000] 2 S.C.R. 307. The hearing panel issued two decisions after hearing all of the evidence. One decision was on the two motions. The other was on the merits. The former decision was made by the hearing panel on the same day but did not involve its assessment of the evidence. This is what the hearing panel had to say:
[116] We find there is no time limit for allegations of judicial misconduct to be filed as complaint with the Review Council.
[119] 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 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.
In what is a first in Canada the Hearing Panel went on to refer one of two counsel who represented the judicial officer to the governing body for lawyers in Ontario, The Law Society of Upper Canada alleging that he committed professional misconduct in discharging his duties as a lawyer. In addition, the Hearing Panel denied the judicial officer's claim for compensation to cover his cost of defending the allegation of judicial misconduct. The Divisional found the Hearing Panel's decision on compensation to be flawed and remitted it back to the JPRC. It is important to appreciate that the Hearing Panel denied compensation to the judicial officer in 2015 and counsel raised the Hryciuk error in the NOH in July, 2013. Clearly, a careful evaluation of the entire record of the proceedings and the Bill of Costs submitted to the Hearing Panel would reveal that in fact the issues around the legality of the complaint and the items which constitute the Hryciuk Error complicated the proceedings and increased the jeopardy faced by the judicial officer and the cost of the defence.
Deficient Tribunal Record
Regrettably, the JPRC Record appears to be missing copies of the motion records, facta and books of authorities filed by the parties with the Hearing Panel which both Presenting Counsel and the Chair of the Hearing Panel confirmed on October 8th, 2014 at pages 158-163 of the transcript would be part of the record "for any further applications which could follow our decision.(see JPRC Record of Proceedings - Vol.III - Tab 60) Given the high standards of fairness of this tribunal in the discharge of its mandate I can only assume that this deficiency in the Record of Proceedings is inadvertent and that it will be corrected.
Ironically, it would appear that the Divisional Court's finding that the JPRC 2013
decision was reasonable is inextricably tied to the hearing panel's finding that the judicial officer was not credible before them and hence incapable of carrying on judicial duties. This is precisely the concern raised on behalf of the judicial officer which the hearing panel took exception to in referring counsel to the Law Society of Upper Canada and indeed in denying the judicial officer compensation for defending the proceedings. This is what the Hearing Panel cited to the LSUC in their referral:
(4) On November 4, 2013, Mr. Guiste stated, "you have the Ministry of the Attorney
General and you have the Justices of the Peace Review Council...there appears
to be either intentionally or unintentionally, objective of seeking to, "if we can't
get him out by legitimate means in accordance with law, then we will so taint his
reputation so that he will be unfit." He further explained his comments by stating:
"Intentionally or unintentionally it appears to me that the Ministry of the
Attorney General and the Attorney General for Ontario have decided in their
wisdom that, "If we cannot get rid of Justice of the Peace Massiah within the
bounds of the law - that is, with respect to legitimate complaints brought in
accordance with the statute - then we will seek to remove him from office by
virtue of the deliterious effects of the publications by virtue of the nature
of the allegations."
Here are the relevant portions of the Divisional Court's Reasons:
[40] The 2012(sic) Panel had also made a finding regarding the manner in which the
applicant had given evidence before it that necessarily weighed heavily on their
conclusion as to the appropriate disposition. In its reasons on the merits, the 2012(sic)
Panel had said:
"In all of these aspects, we find His Worship's evidence to be problematic. His
testimony was replete with inconsistency, an air of insincerity, and efforts to
adjust his testimony to minimize the inappropriateness of his conduct. We do
not accept that he is a credible witness or that his evidence was reliable. (para 174)
[41] The 2012(sic) Panel referred back to this finding towards the end of its decision
on disposition. I agree with counsel for the JPRC that it is difficult to see how, in light
of this finding, that is amply supported by the evidence, the 2012(sic) Panel could have
achieved the necessary goal of restoring and maintaining the integrity of the judiciary,
if it permitted the applicant to remain in his position as a justice of the peace. It is
tough to see how the applicant could be seen as being able to carry out his duties of
adjudicating matters affecting members of the public, in light of this devastating
attack on his own credibility.
Legal Error(s):
In reviewing the legality of the removal of a judicial officer by an administrative tribunal the Divisional Court is exercising both statutory and constitutional jurisdiction. In exercising its powers under the constitution with respect to judicial independence the Divisional Court ought not be limited by the acts or omissions of counsel or the parties otherwise those fundamental rights are capable of being rendered merely illusory rather than binding. It stands to reason that in the context of this type of litigation it is for the court to ensure that both the proceedings before the administrative tribunal and before it are in accordance with law.
A court's duty to thoroughly review the administrative tribunal's record of proceedings is heightened since argument before the JPRC Hearing Panel included claims that they lacked jurisdiction by virtue of not having a complaint in writing pursuant to the enabling legislation, the complaints committee exceeded its jurisdiction in ordering a hearing, the Notice of Hearing was improper in that it contained as much as seven discrete particulars which were never pre-screened by the complaints committee as required by Hyricuk v. Ontario(ONCA), they disregarded established legal authorities from the Supreme Court of Canada such as R v. Skolnick [1982] 2 S.C.R. 47, Blencoe v. B.C. Human Rights Commission [2000] 2 S.C.R. 307 and that their penalty decision was a collateral attack on the 2011 Hearing Panel decision chaired by Justice Vaillencourt - the cumulative effect of which constituted an a abuse of process at common law for which a stay of proceedings ought to have been granted.
In a nutshell, the Divisional Court's decision upholding the JPRC Hearing Panel's decisions on liability and penalty as being reasonable is fundamentally inconsistent with the level of judicial scrutiny called for in the review of the application of the fundamental principle of judicial independence. The legal error or errors in the decision is best summed up by a quote from The Hon. Justice David Stratas in his very thoughtful and provocative paper entitled The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency:
"When we review the decisions of the executive and its agencies, we must always:
- act in a coherent and consistent way relying upon pre-determined, objective doctrine
emanating from and reflecting the animating concept behind judicial review, namely
the tension between Parliamentary supremacy and the reviewing courts' duty to
enforce rule of law standards, and other legal concepts known to our law, including
public policies emanating from legislation and relevant to the task at hand; and
- avoid resorting to ad hoc subjective impressions, aspirations, personal
preconceptions, ideological visions, or freestanding policy opinions - matters that
can depend on the idiosyncrasies of an individual judge and can vary unpredictably
- about what is just, appropriate and right.
The former is the stuff of legal contestation and the legitimate domain of the courts; the
latter is the stuff of public debate and the politicians we elect." (at p.25)
Was Dunsmuir v. New Brunswick
Followed ?:
A finding that an administrative tribunal's decision is reasonable is one which may suggest that the reviewing court is applying the Supreme Court of Canada's binding decision in Dunsmuir v. New Brunswick 2008 S.C.R 9. However, if the reviewing court's decision fails to cite that decision and objectively apply the legal principles flowing from that decision to its conclusion of reasonableness it is hard to see and understand just how the reviewing court came to this conclusion. That is a very serious problem in a case such as this. (R v. Sheppard [2002] 1 S.C.R. 1 and LSUC v. Neinstein (2010) 99 O.R. (3d) 1 (ONCA))
A Look at the 2013 JPRC Panel
Findings:
[23] As the allegations in the complaint relate to sexually-themed comments and
conduct by His Worship, we have jurisdiction to look beyond the Justices of
the Peace Act and to consider the law of sexual harassment and sexualization
in the workplace as defined under the Human Rights Code to assist us in
determining whether there was judicial misconduct...
[24] The Ontario Human Rights Code R.S.O. 1990 c H.10 (the Code) defines
harassment in section 10, as "engaging in a course of conduct of vexatious
comments or conduct that is known or ought to be known to be unwelcome".
A single instance of inappropriate conduct may be a violation of the Code
if it creates a poisoned environment.
[26] Sexual harassment is recognized by the Supreme Court of Canada as a form of
discrimination on the basis of sex...
[27] A"poisoned work environment" can exist when unwelcome comments or conduct
inappropriately sexualized a workplace...
[29] At a previous JPRC hearing, in addition to the one involving His Worship Massiah,
an inappropriate sexualized comment to a female court staff was held to amount
to a finding of judicial misconduct: Re Kowarsky (JPRC 2011)
[64] The allegations contained in paragraphs 1 though 6 of the Notice of Hearing,
as referred to herein paragraph 32, describe general patterns of behaviour, rather
than specific incidents.
[65] For the sake of clarity, we will firstly address the specific acts alleged, in
paragraphs 7 through 14 of the Notice of Hearing in the context of the
evidence, and then we will relate the specific acts which we accept occurred, if
any, back the general allegations.
[207] ....However, we find that His Worship acted in a manner inconsistent with the
Human Rights Code. His actions constituted sexual harassment and he
failed to treat others in the justice system with mutual respect and dignity.
Divisional Court's
Pronouncement on
Unwelcome Test for
Sexual Harassment:
In Thames Valley District School Board v. Elementary Teacher's Federation of
Ontario the Divisional Court 2011 ONSC 1021 stated the following:
[34] In order to establish harassment under human rights legislation, it is not necessary
to prove intention to harass. Rather, the test is an objective one (Stadnyk v.
Canada (Employment and Immigration Commission, [2000] F.C.J. No. 1225,
257 N.R. 385 (C.A.) , at para 11)
Divisional Court's
Pronouncement on
Poisoned Work Environment:
In Crepe it Up ! v. Hamilton 2014 ONSC 6721 the Divisional Court stated the
following:
[18] In General Motors of Canada Ltd. v. Johnson 2013 ONCA 502 Crong J. A
discussed the concept of a poisoned work environment, albeit in the context
of a wrongful dismissal action, at paras 66 and 27:
....There must be evidence that, to the objective reasonable bystander, would
support the conclusion that a poisoned workplace environment had been created...
Moreover, except for particularly egregious, stand-alone incidents, a poisoned
workplace is not created, as a matter of law, unless serious wrongful behaviour
sufficient to create a hostile or intolerable work environment is persistent or repeated.
Ontario Law on Unwelcome
Applied by HRTO:
[198] The Legislature recognizes the fear of retaliation an employee may experience
in informing someone in her or his workplace, especially one in authority, that
his or her conduct is unwelcome. On the other hand, the Legislature recognizes
- as well as the Supreme Court of Canada in Blencoe - the inherent stigma,
which attaches to a serious allegation of sexual harassment. Thus, it has
established a scheme, which acts as a sword or a shield for the complainant
or the respondent, respectively. The complainant can inform the alleged
perpetrator that her or his sexual advance or solicitation is unwelcome
without fear or retort. And, where there is reprisal, or threat, there is
statutory redress. Without that protection, a complainant may not be able
to assert her or his right or prove that the conduct was unwelcome, for
invariably, the defence will be that the victim did not communicate that
the conduct was unwelcome. (Farias v. Chung 2005 HRTO 22 Canli)
JPRC erred
in law on Human Rights Code
Interpretation and Application
to the evidence:
[128] We also find that any obligation an employee of the Region may have had to
report any inappropriate behaviour by His Worship to his/her employer is
irrelevant to our ability to conduct this hearing. This is a hearing regarding
alleged judicial misconduct under the Act, not a right that may exist for an
employee of the Region of Durham under the Collective Agreement or the
Regional Municipality o Durham, Harassment and Discrimination Prevention
Policy. The authority under the Act to address judicial misconduct is not
outsted by documents that are put in place to protect the rights of employees.
[129] We accept that training was provided to His Worship Massiah regarding
workplace conduct and the need for respect towards all stakeholders in
the judicial system...Some notable excerpts from the power point presentation
are:
Is Known or Ought Reasonably
be Known
- The onus of recognizing harassment rests primarily with the harasser
- The victim is not obliged to verbally say "stop".
- Blushing, embarrassment, and moving away are all ways of indicating that
the behaviour is unwelcome and should stop
Unwelcome
- The test is whether the behaviour is unwelcome to the victim, not the harasser....
[130] Nothing in the HRC indicates that the victim must advise a harasser that his/
her actions are unwelcome. That is also made clear in the power point
presentation above.
Panel Ignored Evidence that
conduct was "well received"
at the material time:
22. KK one of the managers in the Court Services Area testified that HW Massiah had
in the past complimented her on looking good and losing weight and she took no offence
to his comments but saw them as a compliment.(see Applicant's Written Submissions -
Part II at p.9 para 22)
23. GG, a witness called by Presenting Counsel gave insightful evidence into HW
Massiah's rapport with the court staff: She said:
"I thought he was very nice. I thought he was friendly, approachable, I thought he was
nice. A lot of them, a lot of the justices, you feel nervous, you don't want to speak to
them. He was more workable and friendly.".....But people were happy to see him
rather than some of the other ones that come in. Again, I don't know if that's because
he would be considered a good-looking older man, or if its because he was friendly
and approachable, people liked him, as opposed to some of the other justices of the
peace who talk to you like they're I don't know ...just like they're much better than
you, which may be the case, but you know, certain ones treat you like you're on
the same level they are, which we do appreciate.".....It didn't bother me that much.
I wasn't really offended by it. I'm surprised everybody else was offended by it,
because they never seemed to have a problem with it at the time."(see same doct.)
27. The following set of questions and answers of GG provides some insight into
the culture or standard of conduct of the work environment:
Q. Was he considered attractive ?
A. I'd say he was yes.
Q. Was there talk to the effect amongst the staff ?
A. Yes.
Q. Can you describe that for us ?
A. Um, well, um we would find out who the justice of the peace is, and you know,
courtroom 105 that day, if was His Worship Massiah, we would say, um - -I
don't remember exact terms its been a long time.
Q. Sure.
A. But people were happy to see him...(see same doct.)
Overlooked Evidence
(Defendant)
The only defendant called before the Hearing Panel testified that HW Massiah did not
act inappropriately in any manner with her and in fact increased her coincidence in the
administration of justice.
The panel released a list of letter acronyms for witnesses who testified before them in
accordance with the publication ban. Two witnesses called on behalf of HW Worship
are not only not on this list but there evidence is nowhere to be found in the Reasons
on Liability or Disposition.
Evidence of Improper
Conduct Ignored by
JPRC Hearing Panel:
HH, QQ and II testiied that they came forward in order to ensure that HW Massiah
did not get a " slap on the wrist." Each of them admitted that they were essentially
dissatisfied with the penalty imposed by the Justice Vaillencourt Hearing Panel.(2011)
(see Applicant's Written Submissions - Part II and Part III)
Application of Kowarsky
(JPRC 2011):
1. HW Kowarsky said to a court clerk in open court while the recording equipment was
on - "Madame clerk I am ready for my blow job now."
2. HW Kowarsky received an order for a publication ban prohibiting his identification
between March 25, 2011 ad the next date that counsel appear before the panel,
including no publication of the Notice of Hearing on the JPRC website;
3. HW Kowarsky received an order for a Pre-Hearing Conference pursuant to
Paragraph 14 of the JPRC Procedural Code for Hearings
4. HW Kowarsky received a reprimand for his judicial misconduct along with a transfer
to another court.
5. HW Massiah never propositioned anyone for sexual favours.
6. HW Massiah was denied a publication ban and his request for one was determined by
the Hearing Panel to be "relief that was factually and legally impossible to grant."
7. HW Massiah was denied a Pre-Heairng Conference despite his request for one.
8. HW Massiah was denied a transfer and was removed from office without any
opportunity to carry-out the disposition of the Vaillencourt Panel(2011).
Below is a copy of the relevant portions of the factum filed on behalf of HW Massiah on the publication ban motion:
JUSTICE OF
THE PEACE REVIEW COUNCIL
IN THE
MATTER OF a complaint(s) respecting
JUSTICE OF
THE PEACE Errol Massiah
Justice of
the Peace in the
Central
East Region
APPLICANT’S FACTUM
PART-
I
ARGUMENT IN BRIEF
1. This
Applicant seeks an order to cure the irresponsible, sensational, scandalous
and
defamatory publication of the allegations in this
proceeding to date. The
failure to cure
these transgressions threatens to undermine the very integrity
and
legitimacy of the adjudication process itself.
PART II - THE FACTS:
6. On May 31st,
2013 the Registrar issued a 15 count Notice of Hearing (NOH) from
the
JPRC. This NOH included seven additional counts of misconduct not
raised in the Registrar’s letter dated January 2nd, 2013.
As above – Notice of Hearing – Tab 6
Legality of “complaints”
in question:
8. The question as to
whether or not the allegations in the NOH were brought in
accordance with law and are “complaints” as that term is used in s.10.2 of the
Justice of the Peace Act is a live issue to be adjudicated by the panel.
The publications to date:
8.(sic) Since the commencement of these proceedings three media outlets have
published stories on the case against the applicant. All of them have
published the allegations against the Applicant as if they are fact without
any disclaimer when in the panel has yet to rule on them.
"Oshawa
JP who sexually harassed staff faces new complaints"
"JP
facing fresh sexual harassment complaints"
"Justices
of the Pease appear before review council"
PART IV - ORDER REQUESTED
12. The Applicant requests an order prohibiting publication of the allegations
in the NOH until the questions(sic) of their legality and the jurisdiction of
m the panel to entertain them is conclusively determined in law.
JPRC Panel also
Error:
Presenting Counsel's
Written Submissions
on Liability(Sept.15/14):
[21] 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.
Respondent's Written
Submission: (July 11, 2013)
[10] The NOH dated May 31st, 2013 included seven additional counts of alleged
misconduct not raised in the Registrar's letter (on behalf of the complaints
committee) dated January 2nd, 2013.
JPRC Liability
Finding(January 12th 2015):
[210] Based on the evidence we find to be cogent and compelling, we accept that the a
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.
JPRC Disposition
Finding:
[64] When we consider the extent and duration of His Worship Massiah's misconduct,
and his testimony, before us, which demonstrated a complete lack of insight into
the gravity of his misconduct even after a previous public hearing, we conclude
that the dispositions set out in paragraphs 11.1(10) (a) to (f) are not sufficient to
restore public confidence in His Worship Massiah or in the judiciary in this case.
Hryciuk v. Ontario (ONCA):
Headnote
"The language of the statutue 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 the in the order-in-council. By hearing three
additional complaints not so referred, she exceeded her jurisdiction."
Law is not a science. Intelligent minds may differ on many a legal issue. Having read the Divisional Court's reasons I for one fail to understand how the reviewing court came to the conclusion that it did. I am also concerned that the reviewing court mixed up the two panels which the moving party on the judicial review faced and consistently erroneously refers to the decisions under review before them as the 2012 Panel when it was the 2013 Panel's decisions which were before them for review.
The fact is that the 2013 Panel overruled the 2012 Panel when it boldly stated in its Decision on Disposition - where it increased a 10 day suspension with removal from office for substantially the same conduct which pre-dated or was concurrent to those of the 2012 Panel - an act which I argued constituted an abuse of process for which a remedy was necessary:
"The Previous Hearing Panel concluded, based on the information presented
at that time, the public nature of the hearing would have brought home to His
Worship any misunderstanding about his position of authority in relation to female
staff. That belief was proved wrong by His Worship's testimony before us."
Conclusion:
The points of law discussed above and which were before the Divisional Court for
judicial review called for a standard of review of correctness.(see Barriolhet v. JPRC
2011 ONSC 3246 at para 24 (Div Ct.) The JPRC Notice of Hearing and the Hearing
Panel used the Human Rights Code to ground the allegations of judicial misconduct
against HW Massiah. In doing so the panel surely can not disregard established legal
principles such as the legal concepts of "vexatious", "unwelcome" and "poisoned work
environment" and deny him the well recognized defence of consent and "being well
received". The Code is quasi-constitutional legislation which can not have a different
application for judicial officers than it does for all other citizens of Ontario. Abuse of
process and the application of Blencoe is also a matter calling for correctness under
Dunsmuir v. New Brunswick (supra). Hrycicuk (supra) is a binding legal authority
from the Court of Appeal for Ontario court calling for a standard of correctness.
In addition, based on the legal principle set down by the Supreme Court of Canada in
R v. Stolnick(supra) HW Massiah did not re-offend. Arguably, for the purposes of
Disposition he appeared before the Hearing Panel without a history of misconduct
since the allegations before them pre-dated the first Disposition.
Did the Hearing Panel
embark on the wrong
inquiry in focusing
on the Notice of Hearing ?
* I have written elsewhere on the potential problems that this can pose to a tribunal's appearance of impartiality and its utility to the reviewing court citing respected jurist Justice of Appeal Goudge's caution in a number of decisions before the Court of Appeal for Ontario where the question of the role of a tribunal in resisting judicial review proceedings against itself has been litigated. In this case Presenting Counsel argued that the hearing panel's jurisdiction stems from the Notice of Hearing -which Presenting Counsel drafted. Independent Counsel, Mr. Brian Gover, advised the hearing panel in the following words on this point:
"It also appears clear to us that there is jurisdiction in the Hearing Panel to consider questions of law specifically arising under s.10.2 of the JPA not only because of these general factors, but because the Hearing Panel's own governing provisions (s.11.1) repeatedly refers to the subject matter of the hearing as being the "complaint". This is seen, for example, at ss.11.1(9), (10) and (19). Particularly with respect to s.11.1(10), the triggering event for the Hearing Panel's jurisdiction to impose specific dispositions is the Hearing Panel's view as to whether to uphold the "complaint". It is therefore necessarily the case that the Hearing Panel must have the power to consider both the content of, and the legislative requirements applicable to, a "complaint" within the meaning of the JPA, since ultimately it is a "complaint" which the Hearing Panel is adjudicating."
Hearing Panel
Departs from Opinion
they Sought:
The Hearing Panel once again departed from the opinion which they sought and received from highly qualified and respected administrative law counsel, Mr. Brian Gover, and concluded as follows in their Decision on Jurisdiction and Alleged Abuses of Process:
[73] Therefore, the Notice of Hearing with its particulars, dated July 4, 4, 2013 and filed as Exhibits 1A and 1B, provides our jurisdiction over this hearing.
In the final analysis the Hearing Panel went on to adjudicate not the "complaint" as it is statutorily mandated to do by s.11.1(10) of the Justices of the Peace Act but the particulars in the Notice of Hearing. They said in their Decision dated January 12, 2015:
[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 the balance of probabilities.
s.11.1(10) 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) ward the justice of the peace;
(b) reprimand the justice of the peace;
(c) order the justice of the peace to apologize to the complainant or any other person;
(d) order that the justice of the peace take specified measures, such as receiving
education or treatment, as a condition of continuing to sit as a justice of the peace;
(e) suspend the justice of peace with pay, for any period;
(f) suspend the justice of the peace without pay, but with benefits, for a period up to
30 days; or
(g) recommend to the Attorney General that the justice of the peace be removed from
office in accordance with section 11.2
Note: This piece is written for the sole purpose of drawing attention to issues of public importance. The issues of public importance in this case include the removal of a judicial officer from office, the arbitrary decision by the Hearing Panel to order that one of the judicial officer's lawyers before them not act on the case before them and their publication of an Addendum wherein they referred the said lawyer - the writer - to the Law Society of Upper Canada with an allegation that he committed professional misconduct and lastly they declined to recommend that the Attorney General indemnify the judicial officer for the two year defence of the judicial misconduct allegations against him contrary to established legal principles - leaving the lawyer unpaid for two years hard labour in defending the judicial officer.
The opinions expressed here are those of the writer based on his knowledge of the law. Law is not a science. Lawyers and judges often differ on legal questions. This is the nature of our system of law. Full and robust discussion on issues of public importance is in the interest of all. This opinion is shared with the community in this spirit. Anyone who disagrees with the opinion expressed here is invited to post their comment here or elsewhere.
No comments:
Post a Comment