Monday, November 7, 2016

The Problematic Portions of the Massiah Notice of Hearing:Part V of My Defence to the JPRC Referral to The LSUC

1.   Page one of the Notice of Hearing proclaims:

"The Justices of the Peace Review Council (the "Review Council", pursuant to subsection 11(15(c) of the Justices of the Peace Act, R.S.O. (1990, c. J.4, as amended (the "Act"), has ordered that the following matter of a complaint regarding the conduct or actions of Justice of the Peace Error Massiah be referred to a Hearing Panel of the Review Council, for a formal hearing under section 11.1 of the Act.


1.  The Review Council can not order hearings. The function is reserved to a Complaints Committee by s.11(15)(c).

s.8(2) clearly spells out the functions of the Review Council:

(a)   to consider applications under section 5.2 for the accommodation of needs;
(b)   to establish complaints committees from among its members to review and investigate complaints under section 11;
(b.1)   to approve criteria under subsection 6(5) for granting approval for justices of the peace to continue in office one they reach 65 years of age;
(c)   to review and approve standards of conduct under section 13;
(d)   to deal with continuing education plans under section 14; and
(e)   to decide whether a justice of the peace may engage in other remunerative work.

s.11(15)   When its investigation is complete, the complaints committee shall,

(c)    order that a formal hearing into the complaint be held by a hearing panel

   When myself and my co-counsel, Mr. Jeff House, properly sought leave to bring this irregularity in the Notice of Hearing to the attention of the Hearing Panel their response was to issue an order directing that I not make any further submissions. This order was made without providing me any opportunity to respond to it.

2.   The following items and issues were not pre-screened by the Complaints Committee as mandated by the Court of Appeal for Ontario in Hryciuk  v. Ontario (1996) 31 O.R. (3d) 1.  Accordingly, the subject JP was never asked to respond to them and learned of them for the first time once served with the NOH in and around June, 2013 - six years after some of the allegations:

1.   Between May 30, 2007 and August 23, 2010, you engaged in a course of conduct, including comments and/or conduct, towards female court staff, prosecutors and defendants that was known or ought to have reasonably been known to be unwelcome or unwanted. The conduct resulted in a poisoned work environment that was not free of harassment;

2.   You acted in a manner inconsistent with the Ontario Court of Justice Discrimination and Harassment Policy for Judges and Justices of the Peace by failing to treat others in the justice system with mutual respect and dignity;

3.   You displayed improper and/or offensive conduct and made inappropriate, sexual and/or offensive comments directed at females that made persons working in the justice system feel uncomfortable, uneasy or embarrassed;

4.   Your Worship ought to have know that such behaviour, particularly given your position as a judicial officer, could cause offence, harm, discomfort and/or undermine the dignity of female staff and prosecutors;

5.   The behaviour occurred in the workplace at the Courthouse or at a location or event related to the workplace;

6.   Your Worship's inappropriate and/or offensive conduct contributed to a poisoned work environment such that that comments and/or behaviour created a hostile or offensive work environment for individuals or groups and diminished individual's confidence in you as a judicial officer and their confidence in the administration of justice;

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.

   When I properly raised the Hryciuk Error on the face of the Notice of Hearing along with other procedural irregularities in the proceedings the Hearing Panel's response was to initiate their very own motion questioning whether they had jurisdiction to entertain the motion I initiated on behalf of my client and order the relief I sought.  The Hearing Panel then went on to retain Independent Counsel in May, 2014 and there motion was not resolved until June, 2014 - some 12 months following the initiation of the original motion I brought on behalf of my client.


  The original question I raised dealing with the complaint in writing requirement for jurisdiction was not answered until January 12th, 2015 - close to 19 months after I raised the question in June, 2013 and 38 months after the Hunt Report(the complaint) was received by the Review Council.  The full record in this case shows that I was not responsible for this delay.  Witnesses were called upon to testify in July, 2014 on matters that took place between 4-7 years prior - not because they initiated a complaint and were committed to seeing the process through.  They were interviewed during their work hours and paid for the time. Their union had no involvement in the process.

Reasonable Apprehension
of Bias:

   Indeed, an independent third party observer aware of the surrounding facts of how HW Massiah's first and second proceedings came to light may reasonably see these second set of proceedings as a calculated effort to justify and secure his removal from office. The following facts speak to this concern:

1.   First proceedings(2011) were initiated not by the staff but by the Director of Court of
Operations of the Ministry of the Attorney General and there was no union involvement
although all the workers were covered by a collective agreement which touched on the
issues raised in the Director's complaint;

2.   Second set of proceedings(2013) were initiated not by the staff but by Presenting Counsel - who was presenting the case initiated by the Director of Court Operations at the time - again with no union involvement although the subject workers were covered by a collective agreement and an anti-harassment policy touching on the issues raised in Presenting Counsel's Report(Hunt) and later in the Notice of Hearing - paragraphs 1-6 and 14 drafted by Presenting Counsel who presented the second case;

3.  Three of the five persons interviewed by Mr. Hunt testified at the second hearing that they were concerned that he may get a "slap on the wrist";

4.   Evidence that the second proceedings(2013) could and should have been initiated with the first was ignored by the Hearing Panel.  Although the second set of proceedings was brought forward on the theory that it involved a second court the allegation at 7(b) of the Notice of Hearing involving AA in 2007 took place at OCJ and not the Provincial Offences Court;

5.   In an article entitled "JP Wants Legal Costs Covered in Sexual Harassment Case " by Michele Mandel of The Toronto Sun dated April 28, 2015 the opinionated columnist, who is one the person's followed on Twitter by Deborah Livingstone @dresdengirrl wrote the following:

"In a 2013 decision, the review council indicated the days of automatically asking the government to reimburse JP's costs are done, especially when they've been found guilty of such "extreme  misconduct" that they've been recommended for removal from office.  JP Donna Phillips, who retired before she could be fired for lying to police, was told she's have to pay her own lawyers' fees. "We are of the firm view that the average reasonable Canadian fully apprised of all of the facts would be shocked if any compensation were awarded".  Ditto for Massiah.  It's time he dipped into his own pocket for a change."

5.   Just prior to the consideration of HW Massiah's claim for compensation for the fees incurred in defending his office the JPRC made an amendment to their Procedures Document making this portion of the hearing public for the first time;(See HW Massiah's Written Submissions on Compensation and May 14th, 2015 Procedures Document)

6.   The day following the Hearing Panel's decision denying compensation and referring me to the Society, Michele Mandel of the Toronto Sun published an article entitled, "Fired JP loses bid to have taxpayers pay legal fees - Lawyer's conduct to be reviewed" - "JP fired over lecherous behaviour loses bid to have taxpayers pay $600,000 in legal fees. "(June 17, 2015);

7.   Deborah Livingstone @ dresdengirrl Retweeted - "JP fired over lecherous behaviour loses bid to have taxpayers pay $600,000 in legal fees."(June 17, 2015 - 6:02 P.M.)

Use of Twitter to 
Promote Position:

    One can not help but wonder just what it is that was so special about the Massiah 2013 proceedings which could have caused the JPRC to amend its Procedures during the course of the hearing to make what has historically been a private issue public. It may have something to do with the test which the Hearing Panel applied in denying compensation, namely, the average reasonable Canadian test.

   Just like so many other aspects of the Massiah case the Toronto Sun's Michele Mandel either has a very effective crystal ball or she is the Government of Ontario's undercover Minister of Information. Ms. Mandel called it perfectly on liability and penalty citing the very same sections of the Notice of Hearing which the Hearing Panel relied upon before their decisions were rendered.

   Prior to the Hearing Panel rejecting the claim for compensation she introduced her readership to the JPRC's new position on compensation and boldly stated, "It's time he dipped into his own pocket for a change."

   Some may argue that in a free and democratic society this is normal. That argument is destroyed once the connection between Deborah Livingstone @ dresdengirrl and Michele Mandel on Twitter is factored into the equation.

   Which ever way one may choose to approach this it is strong and cogent evidence of bias and a lack of impartiality and independence.  The current storm brewing over a judge in Hamilton wearing a Trump Cap pales in comparison to this. No one can accuse that judge of unfairly judging anything as of yet. On the other hand, Justice Deborah Livingstone's every judicial move in the Massiah case mirrors the positions advanced by Michele Mandel from start to finish.

Evidence of Pressure 
on Witnesses Ignored:

   It is noteworthy that prior to taking the stand before the Hearing Panel to testify that she was touched on the shoulders, BB actually complained to her supervisor that a co-worker, II was pressuring her to come forward to testify about the subject incident which she did not remember. (see her testimony - July 16th, 2014 transcript - p.92-102)  These highly relevant admissions were made by BB during the Complaints Committee's investigation.  They are captured in the 5 volumes of transcripts which I specifically filed with the Hearing Panel and the Hearing Panel referred to in the decision on Decision on Jurisdiction and Alleged Abuses of Process at paragraph 11(b) as The Investigator's Report.

  It is also noteworthy that prior to taking the stand before the Hearing Panel and doing a total 360 on her written character reference dated September 12, 2011 in support of HW Massiah in which she stated, "Again, the bottom line is, I find no merit to the case against him from his dealings with myself nor do I think he could/would be that type of person." (Exhibit # 25 ) CC mysteriously communicated an unwillingness to testify in his support in the following words:

"Dear Mr. Bhattacharya,

I was happy to answer your inquiries about His Worship Massiah.  However, I do not consent to attending any type of hearing to testify for personal reasons.  I hope you respect my decision as it would make me feel very uncomfortable to appear in front of my peers.




NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance. The public referral by the JPRC of one of two lawyers representing a judicial officer to the regulating body for lawyers in Ontario, namely, The Law Society of Upper Canada, is a matter of public importance.

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